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23  WIST  MAIN  STRUT 

WltSTiR,N.Y.  USM 

(716)  •72-4503 


CIHM/ICMH 

Microfiche 

Series. 


CIHIVI/iCIVIH 
Collection  de 
mi 


Canadian  Institute  for  Historical  Microreproductions  /  Institut  canadien  de  microreproductions  historiquas 


Tachnical  and  Bibliographic  Notat/Notas  tachniquaa  at  bibliogrcphiquaa 


Tha  Inatituta  haa  attamptad  to  obtain  tha  baat 
original  copy  availabia  for  filming.  Faaturaa  of  thia 
copy  which  may  ba  bibliographically  unlqua. 
which  may  altar  any  of  tha  imagaa  in  tha 
raproduction,  or  which  may  signifieantly  changa 
tha  uaual  mathod  of  filming,  ara  chackad  balow. 


n 


n 


D 


D 


Colourad  covara/ 
Couvartura  da  coulaur 


I     I   Covars  damagad/ 


D 


Couvartura  andommagia 

Covars  rastorad  and/or  laminatad/ 
Couvartura  raataurAa  at/ou  palliculAa 


□   Covar  titia  missing/ 
La 


titra  da  couvartura  manqua 

lourad  maps/ 
Cartas  gtegraphiquas  en  coulaur 


I      I   Colourad  maps/ 


□   Colourad  inic  (i.a.  othar  than  blua  or  black)/ 
Encra  da  coulaur  (i.a.  autra  qua  blaua  ou  noira) 

I     I   Colourad  platas  and/or  illuatrations/ 


Planchas  at/ou  illustrations  an  coulaur 

Bound  with  othar  matarial/ 
RaliA  avac  d'autraa  documanta 


r^   Tight  binding  may  causa  sh^^dows  or  distortion 


along  intarior  margin/ 

La  r«  liura  sarria  paut  causar  da  I'ombra  ou  da  la 

distortion  la  long  da  la  marga  intAriaura 

Blank  laavas  addad  during  raatoratlon  may 
appaar  within  tha  taxt.  Whanavar  poasibia,  thasa 
hava  baan  omittad  from  filming/ 
II  sa  paut  qua  cartainas  pagas  blanchaa  ajoutias 
lors  d'una  rastauration  apparaissant  dans  la  taxta. 
mais.  lorsqua  cala  Atait  poasibia,  caa  pagaa  n'ont 
pas  At*  filmtes. 

Additional  commanta:/ 
Commantairas  supplAmantairas; 


L'Institut  a  microfilmi  la  maillaur  axamplaira 
qu'il  lui  a  itA  poaaibia  da  sa  procurer.  Las  details 
da  cat  axamplaira  qui  sont  paut-Atra  uniquas  du 
point  da  vua  bibliographiqua,  qui  pauvant  modifier 
una  imaga  raproduita,  ou  qui  pauvant  axigar  una 
modification  dans  la  mAthoda  normala  da  filmage 
sont  indiquAs  ci-dassous. 


T 
t( 


r~n   Colourad  pagas/ 


D 


Pagaa  da  coulaur 

Pagaa  damaged/ 
Pagaa  andommagAas 

Pagas  restored  and/oi 

Pagas  reataurAas  at/ou  pelliculAes 

Pages  discoloured,  stained  or  foxe( 
Pagas  dAcoiorAas,  tachatAes  ou  piquAes 

Pagas  detached/ 
Pagas  dAtachAas 

Showthrough/ 
Transparence 

Quality  of  priri 

Quality  inAgale  de  I'impression 

Includes  supplementary  matarii 
Comprend  du  materiel  supplAmentaire 

Only  edition  available/ 
Seuie  Mition  disponible 


nn  Pagaa  damaged/ 

I      I  Pages  restored  and/or  laminated/ 

Fy]  Pages  discoloured,  stained  or  foxed/ 

I     I  Pagas  detached/ 

r~^  Showthrough/ 

FT]  Quality  of  print  varies/ 

nn  Includes  supplementary  material/ 

|~n  Only  edition  available/ 


1 
f 

0 

f 


Pages  wholly  or  partially  obscured  by  errata 
slips,  tissues,  etc..  have  been  refilmed  to 
ensure  the  best  possible  image/ 
Les  pages  totalement  ou  partieilement 
obscurcies  par  un  feuiilet  d'errata,  une  pelure, 
etc.,  ont  AtA  filmAes  A  nouveau  de  fapon  d 
obtenir  la  meilleure  image  possible. 


This  item  is  filmed  at  tha  reduction  ratio  checked  below/ 

Ce  document  est  fiimA  au  taux  de  reduction  jndiqui  ci-deaaous. 

10X  14X  18X  22X 


26X 


30X 


J 


12X 


16X 


aox 


a4x 


28X 


32X 


Th«  copy  film«d  h«r«  hat  b««n  i'«produe«d  thanka 
to  tha  ganaroaity  of: 

University  of  Saikatelitwan 
Saskatoon 


L'axamplaira  filmA  fut  raproduit  grica  i  la 
ginAroaM  da: 

University  of  Saskatchewan 
Saskatoon 


Tha  Imagaa  appaaring  hara  ara  tha  baat  quality 
poaalbia  conaidaring  tha  condition  and  lajilbillty 
of  tha  original  copy  and  In  kaaping  with  tha 
filming  contract  apacificationa. 


Original  copiaa  In  printad  papar  covara  ara  filmad 
baglnning  with  tha  front  covar  and  anding  on 
tha  laat  paga  with  a  printad  or  iliuatratad  impraa- 
alon,  or  tha  back  covar  whan  appropriata.  All 
othar  original  copiaa  ara  filmad  baglnning  on  tha 
f  Irat  paga  with  a  printad  or  Iliuatratad  impraa- 
alon,  and  anding  on  tha  laat  paga  with  a  printad 
or  iliuatratad  Impraaalon. 


Laa  imagaa  auivvntaa  ont  4ti  raproduitaa  avac  la 
piua  grand  aoin,  compta  tanu  da  la  condition  at 
da  la  nattat*  da  Taxampiaira  film*,  at  an 
conformit*  avac  laa  conditiona  du  contrat  da 
flimaga. 

Laa  axampiairaa  originaux  dont  la  couvartura  an 
papiar  aat  ImprimAa  aont  filmto  an  commanfant 
par  la  pramiar  plat  at  an  tarmlnant  aoit  par  la 
darnlAra  paga  qui  eomporta  una  ampralnta 
d'Impraaaion  ou  d'illuatration,  aoit  par  la  aacond 
plat,  aaion  la  caa.  Toua  laa  autraa  axampiairaa 
originaux  aont  filmte  wn  commandant  par  la 
pramlAra  paga  qui  eomporta  una  ampralnta 
d'Impraaaion  ou  d'illuatration  at  an  tarmlnant  par 
la  darnlAra  paga  qui  eomporta  una  talia 
ampralnta. 


Tha  laat  racordad  frama  on  aach  microficha 
ahall  contain  tha  aymboi  — ►  (moaning  "CON- 
TINUED"), or  tha  aymboi  y  (maaning  "END"), 
whichavar  appllaa. 


Un  daa  aymboiaa  auivanta  apparattra  aur  la 
darnlAra  Imaga  da  chaqua  microficha,  aaion  la 
caa:  la  aymbola  — ^  aignif la  "A  SUIVRE",  la 
aymbola  ▼  aignlfia  "FIN". 


IMapa,  plataa,  charta,  ate,  may  ba  filmad  at 
diffarant  raduction  ratloa.  Thoaa  too  larga  to  ba 
antiraly  included  in  ona  axpoaura  ara  filmad 
baglnning  in  tha  uppar  laft  hand  cornar,  laft  to 
right  and  top  to  bottom,  aa  many  framaa  aa 
required.  The  following  diagrama  iiluatrata  the 
method: 


Lee  cartae,  planchea,  tableaux,  etc.,  peuvent  Atre 
flimto  A  dee  taux  da  rMuctlon  diff^ranta. 
Loraque  la  document  eat  trop  grand  pour  Atra 
raproduit  an  un  eeui  clichA,  11  nzt  f  llmi  A  pertir 
de  I'angia  aupArieur  gauche,  do  gauche  h  drolte, 
et  de  haut  en  baa,  en  prenant  la  nombre 
d'imagee  nAceeeaira.  Lea  diagrammea  auivanta 
iiluatrant  la  mAthode. 


1  2  3 


1 

2 

3 

4 

5 

6 

REPORT  OF  DECISIONS 


/■  ■' 


or 


$(■: 


THE  ^COMMISSION  OF  CLAIMS 


'"WS 


VNOER 


THE  CONVENTION  OF  FEBRUARY  8,  1853, 


BETWEEN  THE 


UNITED  STATES  AND  GEEAT.  BRITAIN, 


TRANSMITTED  TO  THE  SENAJJEc,^' 


^jV---^* 


BT 


THE  PRESIDENT  OF  THE  UNI 


TiiBWS^TE^    ' 


AUGUST  11,  18§6. 


WASHINGTON: 

A.  0.  P.  mOHOLSON,  SENATE  FBINTBB. 
1856. 


SEP  1 1 1968 


411160 


■  *.    '"'*i''^'^r*  *^ 


''U 


•M 


mii 


MESSAGE 


OF    THE 


PRESIDENT.  OF  THE    UNITED    STATES, 


COMMUNICATIWO   THE 


PROCEEDINGS  OF   THE  COMMISSIONERS    ' 


FOR   THE 


ADJUSTMENT  OF   CLAIMS 


UN'DER 


THE  CONVENTION  OF  FEBRUARY  S,  im, 


BETWEEN 


THE  UNITED  STATES  AND  GREAT  BRITAIN. 


•  "-* 


WASHINGTON: 

A.  0.  P.  NICHOLSON,  SENATE  PRINTER. 

1856 


/ 


% 


^  • 


^7  4  Jn  Senate  op  the  United  States, 

March2,  1855. 
Rtsohtd,  That  the  President  ^  requested  to  furnish  to  the  Senate  tl>e  report  of  tlie  com- 
miBsionera  for  the  adjustment  of  claims,  under  the  convention  of  February  8,  1853,  between 
the  United  States  and  Great  Britain,  with  the  decisions  of  the  commissioners  and  umpire, 
and  the  arguments  of  the  agents,  as  reported  by  them,  and  that  the  usual  number  of  copies 
of  the  same  be  printed  for  the  use  of  the  Senate,  under  the  direction  of  the  Department  of 
State ;  said  reports  to  be  properly  bound,  edited,  and  indexed. 

Attest :  ASBURY  DICKINS, 

Secretary. 


In  Senate  of  the  United  States, 

.itiguit  12,  185C. 
Resolvecf,  That,  in  addition  to  the  usual  number  of  copies  of  t^  report  of  the  commis- 
sioneis  for  the  adjustment  of  claims,  under  the  convention  of  February  8,  1853,  between  the 
United  States  and  Great  Britain,  and  the  convention  connected  therewith,  heretofore  ordered 
to  bo  printed  for  the  use  of  the  Senate,  there  be  printed  five  hundred  copies  for  the  use  of 
the  Department  of  State. 

Attest:  ASBURY  DICKINS, 

Secrelary. 


m 


'f$m.: 


#    *^ 


INTRODUCTION 


The  convention  under  wliicli  the  commission,  whoso  proceedings  are 
hereinafter  detailed,  derived  its  authority,  was  entered  into  between 
the  United  States  and  Great  Britain,  on  the  8th  day  of  February, 
1853,  the  ratifications  of  which  were  exchanged  on  the  26th  of  July, 
1853. 

It  provided  for  the  adjustment  of  claims  made  upon  the  government 
of  the  United  States  by  corporations,  companies,  and  private  indi- 
viduals, subjects  of  her  Britannic  Majesty,  and  claims  made  upon 
the  government  of  Great  Britain  by  corporations,  companies,  and 
private  individuals,  citizens  of  the  United  States. 

The  jurisdiction  of  the  commissioners  extended  to  all  cases  remain- 
ing unsettled,  which  had  been  presented  to  either  government  for  its 
interposition  with  the  other,  since  the  signature  of  the  treaty  of  peace, 
on  the  24th  of  December,  1814;  and  such  other  claims,  subsequent  to 
that  time,  as  might  be  presented  to  the  commissioners  within  six 
months  from  the  day  of  their  first  meeting.  ^ 

These  claims  were  to  be  impartially  and  carefully  examined  by  the  , 
commissioners,  and  decided  "according  to  the  best  of  their  judgment, 
and  according  to  justice  and  equity  ;"  and  their  decision  was  to  be 
*'a  full,  final,  and  perfect  .settlement  of  every  claim  arising  out  of 
any  transaction  of  a  date  prior  to  the  exchange  of  the  ratifications  of 
the  convention."  -s  ?  -^ 

The  respective  governments  engaged  to  give  full  effect  to  these  deci- 


ii  INTRODUCTION. 

sions,  without  objection,  delay,  or  evasion  ;  and  further  engaged  that 
all  claims  within  the  jurisdiction  of  the  commissioners,  whether  pre- 
sented or  not  for  their  consideration,  should,  from  and  after  the  con- 
clusion of  the  proceedings  of  the  commission,  "bo  considered  and 
treated  as  finally  settled,  barred,  and  thenceforth  inadmissible." 

One  commissioner  was  to  bo  appointed  by  each  government,  and 
the  two  were  to  name  some  third  person  to  act  as  arbitrator  or  um- 
pire, in  cases  in  which  they  might  differ  in  opinion,  and  if  they  could 
not  agree  on  such  person,  each  commissioner  was  to  name  an  umpire, 
and  the  umpire  was  to  be  selected  by  lot  to  act  in  such  cases. 

The  responsibility  of  selecting  an  umpire  for  the  two  governments 
was  thus  devolved  on  the  commission,  as  well  as  the  final  settlement 
of  all  claims  between  the  countries  for  a  period  of  nearly  forty  years. 

The  commission  consisted  of  Nathaniel  G.  Uwiam,  on  the  part  of 
the  United  States,  and  Edmund  Hornby,  on  the  part  of  Great  Britain. 
They  met  at  London  on  the  15th  of  September,  1853,  and,  after 
various  conferences,  on  the  Slst  of  October,  agreed  on  Joshua  Bates, 
of  London,  as  arbitrator  or  umpire,  in  cases  in  which  the  commis- 
sioners might  disagree. 

John  A.  Thomas  was  appointed  agent  of  the  United  States,  and 
James  Hannen  agent  of  Great  Britain,  to  present  the  claims  made  in 
behalf  of  their  respective  governments,  and  to  answer  all  claims 
made  upon  them. 
.-'^  As  all  claims  not  presented  were  to  be  finally  barred,  the  respective 
governments  caused  all  applications  for  redress,  coming  within  the 
period  prescribed  by  the  convention,  to  bo  submitted  for  the  action  of 
the  commission.  Many  of  these  claims  required  but  little  investiga- 
tion and  were  readily  disposed  off.  Others,  mainly  of  a  private 
character,  were  rendered  doubtful  by  conflicting  and  uncertain  testi- 
mony, and  were  strenuously  contested. 

There  was  another  class  of  cases  where  the  governments  were  directly 


)ngaged  that 
whether  pre- 
ifter  the  con- 
isidered  and 
isiblo." 
rnraent,  and 
rator  or  um- 
f  they  could 
3  an  umpire, 

968. 

governments 
.1  settlement 

forty  years. 

the  part  of 
'eat  Britain. 
,  and,  after 
3HUA  Bates, 

le  commis- 

States,  and 

ms  made  in 

all  claims 

B  respective 
Avithin  the 
le  action  of 
investiga- 
a  private 
rtain  testi- 

jre  directly 


I 
i 


INTRODUCTION.  iH  ' 

at  issue  on  grave  questions  of  international  law,  that  had  caused  much 
irritation  between  the  two  countries.  These  cases  had  been  the  sub- 
ject of  laborious  investigation  and  frequent  discussion  in  Congress, 
and  had  been  argued  with  eminent  ability  by  Messrs.  Everett,  Steven- 
son, Bancroft,  and  other  American  ministers  to  Great  Britain,  and 
by  various  members  of  the  British  ministry^  until  all  hope  of  a 
settlement  of  them  in  the  ordinary  mode  had  been  abandoned. 

This  convention  was  then  entered  into  for  the  adjustment  of  these 
claims  between  the  countries  by  a  court  of  final  jurisdiction,  *'  with 
the  belief  that  their  settlement  would  contribute  much  to  the  main- 
tainance  of  friendly  feeling  between  the  two  countries." 

By  the  terms  of  the  convention,  these  cases  were  to  be  decided 
within  one  year  from  the  opening  of  the  commission.  As  this  was 
found  to  be  impracticable,  the  time  was  extended  by  a  supplementary 
convention  to  a  further  period  of  four  months.  "Within  the  period, 
thus  extended,  the  commissioners  acted  upon,  and  finally  disposed  of, 
all  claims  before  them,  and  united,  on  the  15th  of  January,  1855,  in 
mutual  reports  to  their  respective  governments  of  the  result  of  their 
labors. 

Congress  and  Parliament  early  made  appropriations  for  payment  of 
the  several  awards  made  by  the  commissioners,  and  all  claims  between 
the  citizens  or  subjects  of  either  country  against  the  other,  to  the 
date  of  the  ratification  of  the  convention,  July  26,  1855,  have  since 
been  fully  and  finally  settled. 

Those  gentlemen  most  conversant  with  the  trouble  and  difiicnlties 
attending  these  claims  have  expressed,  in  strong  terms,  their  views  as 
to  the  importance  of  this  result.  Mr.  Buchanan,  minister  to  England, 
in  his  letter  addressed  to  the  Secretary  of  State,  at  the  close  of  the 
commission,  dated  London,  January  26,  1855,  states  that  "the  com- 
mission for  the  settlement  of  outstanding  claims  between  the  United 
States  and  Great  Britain  had  just  terminated,"  and  that  "the  relations 


IV 


INTRODUCTION. 


which  the  instructions  from  the  Secretary  had  estahlished  between 
himself  and  the  American  commissioner  and  the  agent,  rendered  it 
proper  for  him  to  express  an  opinion  of  the  manner  in  which  these 
gentlemen  had  respectively  performed  their  duties." 

"This,"  he  says,  "is  a  pleasing  office;  l>i  cause  it  would  scarcely  be 
possible  for  any  individuals  to  have  discharged  these  duties  in  a  more 
satisfactory  manner. 

"  The  business  of  the  commission  was  conducted  by  Judge  Upham 
and  General  Thomas,  in  their  several  spheres  of  action,  with  much 
ability,  as  well  as  indefatigable  industry  and  perseverance  ;  and  the 
result  of  their  labors  has  proved  to  be  quite  as  favorable  to  our  country 
as  could  have  beon  reasonably  anticipated. 

"  The  action  of  this  commission  will  be  a  great  relief  to  the  two 
governments.  All  the  claims  of  the  citizens  and  subjects  of  each  on 
the  government  of  the  other,  which  had  been  accumulating  since  the 
date  of  the  treaty  of  Ghent,  (24th  December,  1814,)  and  had  given  rise 
to  so  much  diplomatic  correspondence^  have  happily  now  been  decided, 
and  can  no  longer  become  subjects  of  discussion. 

"These  claims  in  number  exceeded  one  hundred,  and  in  amount 
involved  millions  of  dollars.  The  sum  actually  awarded  was  about 
|600,000,  of  which  the  American  claimants  will  receive  considerably 
more  than  one-half." 

Similar  favorable  views,  as  to  the  result  of  the  commission,  and  its 
great  relief  to  the  diplomatic  relations  between  the  two  countries,  have 
been  expressed  by  Mr.  Everett,  in  letters  congratulating  the  commission 
on  the  successful  completion  of  their  labors. 

The  report  submitted  consists  of  several  distinct  parts,  containing — 

1.  The  journal  of  the  proceedings  of  the  commission. 

2.  The  docket  of  the  American  claims,  with  the  awards  and  disposal 
of  cases  thereof. 

3.  The  docket  of  British  claimants,  and  awards  thereon. 


es  in  a  more 


INTRODUCTION.  V  V 

4.  A  report  of  those  cases  involving  important  principles,  which 
were  drawn  up  at  length  by  the  commission. 

5.  Appendix,  containing  correspondence  as  to  the  appointment  of 
umpire,  and  other  papers  connected  with  the  commission. 

6.  Index  of  casea. 

Washington,  September  30,  1856. 


r 


.  *«^.^..»^«_ 


A*.  H'-'i'.h  . 


^*- 


if 


4  ■  -' 


LIST    OF    CASES 


WHERE  THE   OPINIONS  OF  THE  COMMISSIONERS  AND  UMPIRE  ARE   REPORTED 

AT  LENOTH. 


Page. 
Albion. — Seizure  for  cutting  timber — Trading  with  the  Indians  without  licence,  &c., 

in  Oregon  Territory • 376 

Cook  et  alb. — Claim  of  heirship  to  estates,  and  funds  of  intestate,  in  hands  of  British 

goTemment — Held  not  to  be  within  jurisdiction  of  commiesion > 166 

The  Creole. — Mutiny  of  slaves,  and  seizure  of  vessel — Arrival  in  foreign  port — 

Claimed  by  consul — Liberated— Compensation  for 241 

The  Enterfrize. — Right  pf  shelter  in  foreign  ports  in  stress  of  weather— Protection 

over  cargo  and  persons,  in  such  case,  same  as  on  high  seas 167 

Florida  Bonds. — Liability  for  same,  solely  a  debt  of  the  Territory— no  ground  of 

claim  against  United  States 246 

Great  Western  Steamship  Company. — Claim  for  drawback  on  coals  imported  for 

return  trip  of  steamer — Construction  of  statute  as  to  allowance  of  same 328 

The  Hermosa. — Wrecked — Slaves  taken  on  board,  wreckers  to  be  forwarded — 

Seized  and  liberated — Claim  for 238 

Holford's  Case. — Texas  bonds — Claim  for  payment  of— not  embraced  in  commission — 

Effect  of  international  union  on  prior  indebtedness 382 

Houghton's  Case— Property  taken  l)y  pirates— Recaptured  by  government  cruiser — 

Portion  of  proceeds  received  into  public  Treasury — Allowance  for 161 

Hodson's  Bat  Company — Claim  for  redeeming  from  the  Indians  American  settlers, 
and  shipwrecked  mariners  from  captivity  with  Indians  in  Oregon,  before  organ- 
ization of  Territory 1C4 

The  John— Capture  after  treaty  of  peace  in   1814— Construction  of  provision  in 

treaties  as  to  the  time  for  peace  to  take  effect  in  different  latitudes 427 

The  Jones. — Seizure  on  charge  of  being  concerned  in  slave  trade — Acquitted— Sold 

for  costs — Claim  for 83 

Kenwortht's  Case.— New  York  custom  house  seizures- Settlement  of  suits— Claim 

to  revise  tliem  under  commission , 334 


Viii  LIST  OF  GASES. 

KERroRD  &.  Jenkini. — Licensed  to  trade  during  war — Detention  while  necessary  (or 

safety  of  the  army — Claim  for 351 

Kino  and  Gracie,  (Barrt,  agent.) — For  return  of  excess  of  duties  on  woolen  {[oods,       *, 
under  clause  of  equality  witli  most  favored  nations — Statute  of  limitations  no 
bar  to  treaty  provisions 305 

Laurent's  Case. — Domicil  in  foreign  country  in  time  of  war — Effect  of— Claim  for 

losses  in  such  case  not  admissible  under  former  rights  of  citizenship 120 

Af  cCalmont,  Greaves  and  Company. — Assesments  of  duties  under  temporary  tariiT 
in  Mexico — Claim  for  return  of,  on  account  of  alledged  mistake  in,  and  subse- 
quent change  made  in  tariff 339 

McLeod's  Case. — Arrest  for  criminal  offence  during  border  troubles — Assumption  of 
acts  by  British  government — Effect  of  on  claim  of  party  to  release — Settlement 
of  international  disputes — A  settlement  of  personal  claims — Dependent  on  them      314 

Pattison  andCompant. — Claim  fbr  remission  of  excess  of  duties  on  cotton  goods  more 

than  charged  other  governments — Construction  of  tariff  of  August  3U,  1842. . . .      3U1 

Uhdb's  Case. — Domicil  abroad  in  war— Effect  of  license  to  trade — Seieure  of  goods — 

Claim  for  relief  under  order  of  Secretary 436 

The  Washington. — Construction  of  treaty  of  181d  as  to  fisheries — Bay  of  Fundy  held 
to  be  an  open  arm  of  the  sea,  not  subject  to  such  British  control  as  to  exclude 
American  fisheries « .* 170 

Wirohan's  Case,  (agent.) — For  return  of  excess  of  duties  on  cottons  more  than 

charged  other  governments— Construction  of  tariff  of  May  33,  1834 311 


t 


Mary  for 

Page. 
351 

in  foods, 

t 

tiona  no 

305 

Haim  for 

120 

iry  tariff 
d  Bubse- 

»••••••• 

339 

ption  of 
ttlement 

on  them 

314 

tds  more 

842. . . . 

3U1 

436 

idy  held 
exclude 

no 

re  than 

311 

#^- 


MESSAGE 


f 


or 


THE  PRESIDENT   OF   THE   UNITED  STATES, 


COMMUNICATING, 


In  compliance  loith  a  resolution  of  the  Senate  of  March  3,  1855,  infor- 
mation relative  to  the  proceedings  of  the  commissioners  for  the  adjust- 
ment of  claims  under  the  convention  with  Great  Britain  of  February 
8,  1853. 


AuGfST  12,  1856. — Read,  ordered  to  lie  on  the  table  and  be  printed,  and  that  500  addi- 
tional copies  be  printed  for  the  use  of  the  Department  of  State. 


■^SiS"**- 


To  the  Senate  of  the  United  States: 

In  compliance  with  the  resolution  of  the  Senate  of  the  3d  March, 
1855",  requesting  information  relative  to  the  proceedings  of  the  com- 
missioners for  the  adjustment  of  claims  under  the  convention  with 
Great  Britain  of  the  8th  of  February,  1853^  I  transmit  a  report  from 
the  Secretary  of  State,  to  whom  the  resolution  was  referred. 

FRANKLIN  PIERCE. 

Washington,  August  11,  1856. 


Department  of  State, 

Washington,  August  9,  1850. 
The  Secretary  of  State,  to  whom  was  referred  the  resolution  of  the 
Senate  of  the  3d  March,  1855,  requesting  "  the  President  to  furnish  to 
the  Senate  the  report  of  the  commissioners  for  the  adjustment  of 
claims  under  the  convention  of  February  8,  1853,  between  the  United 
States  and  Great  Britain,  with  the  decisions  of  the  commissioners  and 
umpire,  and  the  arguments  of  the  agents  as  reported  by  them,  and 
that  the  usual  number  of  copies  of  the  same  be  printed  for  the  use 
of  the  Senate,  under  the  direction  of  the  Department  of  State,  to  be 
properly  bound,  edited,  and  indexed,"  has  the  honor  to  lay  before  the 
President  a  copy  ol  all  the  papers  called  for  by  the  resolution,  which 
are  on  file  in  this  department. 

Respectfully  submitted. 

W.  L.  MARCY. 
To  the  President  of  the  United  States. 


■'*TC': 


COPY  OF  RESOLUTION  FOR  THE  PUBLICATION  OF  THE  REPORT  OF  THE 

COMMISSIONERS. 

United  States  Senate,  3farch  3,  1855. 
Resolved,  That  the  President  be  requested  to  furnish  to  the  Senate 
the  report  of  the  commissioners  for  the  adjustment  of  claims  under 
the  convention  of  February  8,  1853,  between  the  United  States  and 
Great  Britain,  with  the  decisions  of  the  commissioners  and  umpire, 
and  the  arguments  of  the  agents  as  reported  by  them,  and  that  the 
usual  number  of  copies  of  the  same  be  printed  for  the  use  of  the  Senate, 
under  the  direction  of  the  Department  of  State ;  said  report  to  be 
properly  bound,  edited,  and  indexed. 


^^-1'  ^ 


'^-%' 


ORT  OF  THE 


« 


OFFICE  OF  COMMISSION, 

London,  January  15,  1855. 


n 


REPORT  OF  THE  COMMISSIONERS  UNDER  THE  CONVENTION  OF  FEBRU- 
ARY 8,  1853,  FOR  THE  ADJUSTMENT  OF  CLAIMS  OF  CITIZENS  OF  THE 
UNITED  STATES  AGAINST  THE  BRITISH  GOVERNMENT,  AND  OF  SUB- 
JECTS OF  GREAT  BRITAIN  AGAINST  THE  UNITED  STATES,  TO  THEIR 
RESPECTIVE  GOVERNMENTS 


The  undersigned  commissioners,  herewith,  respectfully  report  to 
their  respective  governments  their  proceedings  and  awards,  under  the 
convention  of  February  8,  1853,  for  the  adjustment  of  claims  of 
citizens  of  the  United  States  and  subjects  of  Great  Britain  against 
either  government. 

The  cases  submitted  for  the  consideration  of  the  commissioners  have 
greatly  exceeded  the  number  originally  anticipated.  This  has  arisen 
from  the  fact  that  the  agents  of  the  governments  have  deemed  it  their 
duty  to  submit  all  claims  coming  within  the  period  proscribed  by  the 
convention,  which  had  been  presented  to  either  government  for  its 
interposition  with  the  other. 

Many  of  these  cases  might  never  have  been  made  a  matter  of  con- 
sideration, had  they  not  been  thus  brought  forward. 

The  mere  statement  of  some  of  them  would  justify  their  rejection, 
but  in  most  instances  they  have  required  very  considerable  investiga- 
tion. 


6 


REPORT  OF  COMMISSIONERS. 


Tho  duties  of  the  commissioners  have  thus  been  greatly  increased 
beyond  what  was  originally  contemplated.  Many  of  the  cases  also 
had  formed  the  subject  of  long  and  serious  discussions  between  the 
two  governments.  In  the  adjustment  of  these  claims  the  commis- 
sioners have  naturally  felt  the  responsibility  cast  upon  them,  and  have, 
therefore,  devoted  no  inconsiderable  amount  of  time  and  labor  to  their 
settlement,  and  they^have  found  it  difficult  to  conclude  the  business  of 
the  commission  within  the  time  to  which  it  had  been  extended. 

They  have,  however,  passed  upon  all  tho  cases  before  them,  and 
beg  to  report  their  action,  and  that  of  the  umpire  thereon,  as  the  best 
result  they  have  been  able  to  attain  in  discharging  the  important 
duties  intrusted  to  them. 

The  papers  herewith  presented  consist  of  the  journal  of  proceed- 
ings of  the  commissioners  and  umpire  ;  the  list  of  claims  of  the  citi- 
zens or  subjects  of  either  country  against  the  other,  with  the  awards 
and  opinions  thereon ;  together  with  the  correspondence  relative  to  the 
appointment  of  an  umpire,  and  other  matters  pertaining  to  the  com- 
mission. 

All  which  is  respectfully  submitted. 

N.  G.  UPHAM, 

United  States  Commissioner. 

EDMUND  HOKNBY, 

British  Commissioner 


PROCEEDINGS  AND  AWARDS 


OF  THE 


COMMISSIONERS    AND    UMPIRE, 


UNDER  THE 


Convention  of  February  'i,  1853, /oj-  the  adjustment  of  dams  of  citi- 
zens of  the  United  States  against  the  British  government  and  of  sub- 
jects of  Great  Britain  against  the  United  States. 


%-^. 


JOURNAL  OF  THE  COMMISSION. 

9  Wellington  Chambers,  Lancaster  Place, 

Waterloo  Bridge,  London,  September  15,  1853. 
On  the  eighth  clay  of  February,  one  thousand  eight  hundred  and 
fifty-three,  a  convention  was  concluded  between  the  United  States  of 
America  and  her  Britannic  Majesty,  for  the  adjustment  of  certain 
claims  of  citizens  of  the  United  States  on  the  British  goverment  and 
of  British  subjects  on  the  government  of  the  United  States,  by  means 
of  a  mixed  commission  to  be  duly  constituted  for  that  purpose,  which 
convention  is  as  follows : 

Convention  bctiveen  the  United  States  of  America  and  her  Britannic 
Majesty  for  the  settlement  of  outstanding  claims  of  the  citizens  of  either 
country  against  the  other. 

Whereas,  claims  have  at  various  times,  since  the  signature  of  the 
treaty  of  peace  and  friendship  between  the  United  States  of  America 
and  Great  Britain,  concluded  at  Ghent  on  the  24th  of  December,  1814, 
been  made  upon  the  government  of  the  United  States  on  the  part  of 
corporations,  companies,  and  private  individuals,  subjects  of  her  Bri- 
tannic Majesty,  and  upon  the  government  of  her  Britannic  Majesty 


8  ADJUSTMENT  OF  CLAIMS  UNDER  THE 

on  the  part  of  corporations,  companies,  and  private  individuals,  citi- 
2en8  of  the  United  States ;  and  whereas  some  of  such  claims  are  still 
pending  and  remain  unsettled,  the  President  of  the  United  States  of 
America  and  her  Majesty  the  Queen  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  being  of  opinion  that  a  speedy  and  equitable  set- 
tlement of  all  such  claims  will  contribute  much  to  the  maintenance  of 
the  friendly  feelings  which  subsist  between  the  two  countries,  have 
resolved  to  make  arrangements  for  that  purpose  by  means  of  a  conven- 
tion, and  have  named  as  their  plenipotentiaries  to  confer  and  agree 
thereupon,  that  is  to  say — 

The  President  of  the  United  States  of  America,  Joseph  Reed 
Ingersoll,  envoy  extraordinary  and  minister  plenipotentiary  of  the 
United  States  to  her  Britannic  Majesty ; 

And  her  Majesty  the  Queen  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  the  Right  Honorable  John  Russell,  (commonly 
called  Lord  John  Russell,)  a  member  of  her  Britannic  Majesty's  most 
honorable  privy  council,  a  member  of  parliament,  and  her  Britannic 
Majesty's  principal  secretary  of  state  for  foreign  affairs  ; 

Who,  after  having  communicated  to  each  other  their  respective  full 
powers,  found  in  good  and  due  form,  have  agreed  as  follows: 

Article  I. 

The  high  contracting  parties  agree  that  all  claims  on  the  part  of 
corporations,  companies,  or  private  individuals,  citizens  of  the  United 
States,  ui)on  the  government  of  her  Britannic  Majesty,  and  all  claims 
on  the  i)art  of  corporations,  companies,  or  private  individuals,  sub- 
jects of  her  Britannic  Majesty,  upon  the  government  of  the  United 
States,  which  may  have  been  presented  to  either  government  for  its 
interposition  with  the  other  since  the  signature  of  the  treaty  of  peace 
and  friendship,  concluded  between  the  United  States  of  America  and 
Great  Britain  at  Ghent,  on  the  24th  of  December,  1814,  and  which 
yet  remain  unsettled,  as  well  as  any  other  such  claims,  which  may  be 
presented  within  the  time  specified  in  article  III,  hereinafter,  shall 
be  referred  to  two  conmiissionors,  to  be  appointed  in  the  following 
manner,  that  is  to  say:  One  commissioner  shall  be  named  by  the 
President  of  the  United  States,  and  one  by  her  Britannic  Majesty. 
In  case  of  the  death,  absence,  or  incapacity  of  either  commissioner,  or 
in  the  event  of  either  commissioner  omitting  or  ceasing  to  act  as  such, 


th 
tiJ 
thl 

coj 
shl 
del 

del 


CONVENTION  WITH  GREAT  BRITAIN. 


lividuals,  citi- 
taims  are  still 
ited  States  of 
dom  of  Great 
equitable  set- 
aintenance  of 
intries,  have 
}  of  a  conven- 
fer  and  agree 

roseph  Reed 
itiary  of  the 

m  of  Great 
,  (commonly 
jesty's  most 
Jr  Britannic 

5pective  full 

vs  : 


the  part  of 
the  United 
I  all  claims 
duals,  sub- 
the  United 
ent  for  its 
iy  of  peace 
nerica  and 
and  which 
oil  may  be 
fter,  shall 
following 
3d  by  the 
!  Majesty. 
Jsioner,  or 
:t  as  such, 


\ 


the  President  of  the  United  States,  or  her  Britannic  Majesty,  respec- 
tively, shall  forthwith  name  another  person  to  act  as  commissioner  in 
the  place  or  stead  of  the  commissioner  originally  named. 

The  commissioners,  so  named,  shall  meet  at  London  at  the  earliest 
convenient  period  after  they  shall  have  been  respectively*iamed ;  and 
shall,  before  proceedfng  to  any  business,  make  and  subscribe  a  solemn 
declaration  that  they  will  impartially  and  carefully  examine  and 
decide,  to  the  best  of  their  judgment,  and  according  to  justice  and 
equity,  without  fear,  favor,  or  affection  to  their  own  country,  upon  all 
such  claims  as  shall  be  laid  before  thcni  on  the  part  of  the  govern- 
ments of  the  United  States  and  of  her  Britannic  Majesty,  respectively; 
and  such  declaration  shall  be  entered  on  the  record  of  their  proceed- 


ings. 


The  commissioners  shall  then,  and  before  proceeding  to  any  other 
business,  name  some  third  person  to  act  as  an  arbitrator  or  umpire  in 
any  case  or  cases  on  which  they  may  themselves  differ  in  opinion.  If 
they  should  not  be  able  to  agree  upon  the  name  of  such  third  person, 
they  shall  each  name  a  i)crson  ;  and  in  each  and  every  case  in  which 
the  commissioners  may  differ  in  opinion  as  to  the  decision  which  they 
ought  to  give,  it  shall  be  determined  by  lot  which  of  the  two  persons 
so  named  shall  be  the  arbitrator  or  umpire  in  that  particular  case. 
The  person  or  persons  so  to  be  chosen  to  be  arbitrator  or  umpire  shall, 
before  proceeding  to  act  as  such  in  any  case,  make  and  subscribe  a 
solemn  declaration  in  a  form  similar  to  that  which  shall  already  have 
been  made  and  subscribed  by  the  commissioners,  which  shall  be  en- 
tered on  the  record  of  their  proceedings.  In  the  event  of  the  death, 
absence,  or  incapacity  of  such  person  or  persons,  or  of  his  or  their 
omitting,  or  declining,  or  ceasing  to  act  as  such  arbitrator  or  umpire, 
another  and  different  person  shall  be  named  as  aforesaid,  to  act  as  such 
arbitrator  or  umpire  in  the  place  and  stead  of  the  person  so  originally 
named  as  aforesaid,  and  shall  make  and  subscribe  such  declaration  as 
aforesaid. 

Article  II. 

The  commissioners  shall  then  forthwith  conjointly  proceed  to  the 
investigation  of  the  claims  which  shall  be  presented  to  iheir  notice. 
They  shall  investigate  and  decide  upon  such  claims,  in*such  order, 
and  in  such  manner,  as  they  may  conjointly  think  proper,  but  upon 
such  evidence  or  information  onlv  as  shall  be  furnished  bv  or  on  behalf 


10 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


of  their  respective  governments.  Tliey  shall  be  bound  to  receive  and 
peruse  all  written  docunientH  or  statements  which  may  be  presented  to 
them  by  or  on  behalf  of  their  respective  governments,  in  support  of, 
or  in  answer  to,  any  claim  ;  and  to  hear,  if  reiinired,  one  person  on 
each  side,  («  Itehalf  of  each  government,  as  counsel  or  agent  for  such 
government,  on  each  and  every  separate  claim.  Should  they  fail  to 
agree  in  opinion  upon  any  individual  claim,  they  shall  call  to  their 
assistance  the  arbitrator  or  umpire  whom  they  may  have  agreed  to 
name,  or  who  may  be  determined  by  lot,  as  the  case  may  be ;  and  such 
arbitrator  or  umpire,  after  having  examined  the  evidence  adduced  for 
and  against  the  claim,  and  after  having  heard,  if  required,  one  person 
on  each  side  as  aforesaid,  and  consulted  with  the  commissioners,  shall 
decide  thereupon  finally,  and  without  appeal.  The  decision  of  the 
commissioners,  and  of  the  arbitrator  or  umpire,  shall  be  given  upon 
each  claim  in  writing,  and  shall  be  signed  by  them  respectively.  It 
shall  be  competent  for  each  government  to  name  one  jjcrson  to  attend 
the  commissioners  as  agent  on  its  behalf,  to  present  and  support  claims 
on  its  behalf,  and  to  answer  claims  made  u])on  it,  and  to  represent  it 
generally  in  all  matters  connected  with  the  investigation  and  decision 
thereof. 

The  President  of  the  United  States  of  America,  and  her  Majesty 
the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland, 
hereby  solemnly  and  sincerely  engage  to  consider  the  decision  of  the 
commissioners  conjointly,  or  of  the  arbitrator  or  umpire,  as  the  case 
may  be,  as  absolutely  final  and  conclusive  upon  each  claim  decided 
upon  by  them  or  him  respectively,  and  to  give  full  effect  to  such  de- 
cisions without  any  objection,  evasion,  or  delay  whatsoever. 

It  is  agreed  that  no  claim  arising  out  of  any  transaction  of  a  date 
prior  to  December  24,  1814,  shall  be  admissible  iiuder  this  convention. 


.i»^- 


Article  III. 


Every  claim  shall  be  presented  to  the  commissioners  within  six 
months  from  the  day  of  their  first  meeting,  unless  in  any  case  where 
reasons  for  delay  shall  be  established  to  the  satisfaction  of  the  com- 
missioners, or  of  the  arbitrator  or  umpire,  in  the  event  of  the  com- 
missioners differing  in  opinion  thereupon  ;  and  then,  and  in  any  such 
case,  the  period  for  presenting  the  claim  may  be  extended  to  any  time 
not  exceeding  three  months  longer. 


to  receive  and 
)e  presented  to 
in  support  of, 
DUO  person  on 
iigent  for  such 
!<l  they  fail  to 
i  call  to  their 
ivo  a{?reed  to 
bo;  and  such 
•i  adduced  for 
d,  one  person 
sioners,  shall 
3cision  of  the 
3  given  upon 
•ectively.     It 
Mm  to  attend 
ipport  claims 
'  represent  it 
and  decision 

iier  Majesty 
nd  Ireland, 
ision  of  the 
as  the  case 
vim  decided 
to  such  de- 

n  of  a  date 
onvention. 


within  six 
3ase  Avhere 
f  the  coni- 

the  coni- 
L  any  such 

any  time 


CONVENTION  WITH  OREAT  BRITAIN. 


11 


The  commissioners  shall  be  bound  to  examine  and  decide  upon 
every  claim  witliin  one  year  from  tiie  day  of  their  first  meeting.  It 
shall  be  competent  for  the  commissionerH  conjointly,  or  for  the  arbi- 
trator or  umpire,  if  they  differ,  i^  decide  in  each  case  whether  any 
claim  lias  or  has  not  been  duly  made,  pn^ferred,  and  laid  before  them, 
either  wholly,  or  to  a'ny  and  what  extent,  according'  to  the  true  intent 
and  meaning  of  this  convention. 

Article  IV. 

All  sums  of  money  which  may  be  awarded  l)y  the  commissioners, 
or  by  the  arbitrator  or  umpire,  on  account  of  any  claim,  shall  be  paid 
hy  the  one  government  to  the  other,  as  the  case  may  be,  within  twelve 
months  after  the  date  of  the  decision,  without  interest,  and  without 
any  deduction,  save  as  specified  in  article  VI  hereinafter. 

Article  V. 

The  high  contracting  parties  engage  to  consider  the  result  of  the 
proceedings  of  this  commission  as  a  full,  perfect,  and  final  settlement 
of  every  claim  upon  either  government  arising  out  of  any  transaction 
of  a  date  prior  to  the  exchange  of  the  ratifications  of  the  present  con- 
vention ;  and  further  engage  that  every  such  claim,  whether  or  not 
the  oame  may  have  been  i^resented  to  the  notice  of,  made,  preferred, 
or  laid  before  the  said  commission^  shall,  from  and  after  the  conclu- 
sion of  the  proceedings  of  the  said  commission,  be  considered  and 
treated  as  finally  settled,  barred,  and  thenceforth  inadmissible. 

Article  VI. 

The  commissioners,  and  the  arbitrator  or  umpire,  shall  keep  an  ac- 
curate record,  and  correct  minutes  or  notes  of  all  their  proceedings, 
with  the  dates  thereof,  and  shall  appoint  and  employ  a  clerk,  or  other 
persons,  to  assist  them  in  the  transaction  of  the  business  Avhicli  may 
come  before  them. 

Each  government  shall  pay  to  its  commissioner  an  amount  of  salary 
not  exceeding  three  thousand  dollars,  or  six  hundred  and  twenty 
poundo  sterling,  a  year,  which  amount  shall  be  the  same  for  both 
governments. 

The  amount  of  salary  to  be  paid  to  the  arbitrator  (or  arbitrators,  as 


12 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


the  case  may  be)  shall  be  determined  by  mutual  consent  at  the  close 
of  the  commission. 

The  salary  of  the  clerk  shall  not  exceed  the  sum  of  fifteen  hundred 
dollars,  or  three  hundred  and  ten  pounds  sterling,  a  year. 

The  whole  expenses  of  the  commission,  including  contingent  ex- 
penses, shall  be  defrayed  by  a  ratable  deduction  on  the  amount  of  the 
sums  awarded  by  the  commission  ;  provided  always  that  such  deduc- 
tion shall  not  exceed  the  rate  of  five  per  cent,  on  the  sums  so  awarded. 

The  deficiency,  if  any,  shall  be  defrayed  in  moieties  by  the  two  gov- 
ernments. 

Article  VII. 

The  present  convention  shall  be  ratified  by  the  President  of  the 
United  States,  by  and  with  the  advice  and  consent  of  the  Senate 
thereof,  and  by  her  Britannic  Blajesty  ;  and  the  ratifications  shall  be 
exchanged  "at  London  as  soon  as  may  be  witliin  twelve  months  from 
the  date  hereof. 

In  witness  whereof,  the  respective  plenipotentiaries  have  signed  the 
same,  and  have  affixed  thereto  the  seals  of  their  arms. 

Done  at  London;,  the  eighth  day  of  February,  in  the  year  of  our 
Lord  one  thousand  eight  hundred  and  fifty-three. 

J.  R.  INGERSOLL.     [l.  s.] 
J.  RUSSELL.  [l.  s.] 


Ratifications  of  said  convention  were  exchanged  at  London  on  the 
twenty-sixth  of  July,  1853. 

In  accordance  witli  the  terms  of  this  treaty,  the  President  of  the 
United  States  of  America  nominated  and,  by  and  with  the  advice  and 
consent  of  the  Senate  thereof,  appointed  Nathaniel  G.  Upham,  com- 
missioner on  the  part  of  the  United  States,  and  her  Britannic  Majesty, 
Edmund  Hornby,  esq.,  commissioner  on  the  part  of  the  United  King- 
dom of  Great  Britain  and  Ireland,  to  meet  and  carry  into  effect  tho 
provisions  of  tlie  above  named  convention  ;  and  the  said  commissioners 
met  on  this  the  fifteenth  day  of  September,  one  thousand  eight  hun- 
dred and  fifty-three,  at  tlieir  office  in  London,  and  interchanged  their 
respective  commissions,  found  in  good  and  due  form,  which  are  as 
follows : 


CONVENTION   WITH   GREAT  BRITAIN. 


13 


at  the  close 

;en  hundred 

tingent  ex- 
lount  of  the 
such  deduc- 
so  awarded, 
he  two  gov- 


dent  of  the 

the  Senate 

>ns  shall  be 

onths  from 

signed  the 

^ear  of  our 

.       [L.S.] 
[L.  S.] 

Ion  on  the 

ent  of  the 
advice  and 
liam,  com- 
c  Majesty, 
ited  King- 
effect  tho 
missionerij 
ight  hun- 
igcd  their 
ch  are  as 


'i 


COPY  OF  THE  COMMISSION  OP  THE  AMERICAN  COMMISSIONER. 

Franklin  Pierce,  President  of  the  United  States  of  America,  to  all 
who  shall  see  these  presents,  greeting  : 

Know  ye,  that  reposing  special  trust  and  confidence  in  the  integrity 
and  abilities  of  Nathaniel  G.  Ui)ham,  of  New  Hampshire^  I  have 
nominated  and,  by  and  with  the  advice  and  consent  of  the  Senate,  do 
appoint  him  commissioner  of  the  United  States,  under  the  convention 
with  her  Britannic  Majesty  on  the  subject  of  claims,  and  do  authorize 
and  empower  him  to  execute  and  fulfil  the  duties  of  that  office  accord- 
ing to  law,  and  to  have  and  to  hold  the  said  office  with  all  the  powers, 
privileges,  and  emoluments  thereunto  of  right  appertaining  unto  him, 
the  said  Nathaniel  G.  Uphain. 

In  testimony  whereof,  I  have  caused  these  letters  to  be  made  patent 
'and  the  seal  of  the  United  States  to  be  hereunto  affixed. 

Given  under  my  hand,  at  the  city  of  Washington,  the  twenty-third 
day  of  March,  in  the  year  of  our  Lord  one  thousand  eight  hundred 
and  fifty-three,  and  of  the  independence  of  the  United  States  the 
seventy-seventh. 

FRANKLIN  PIERCE. 

By  the  Piesident : 

W.  L.  Marcy, 

Secretary  of  State. 


COPY  OF  THE  COMMISSIOX  OF  HER  BRITANXIC  MAJESTY'S  COMMISSIOXER. 

VICTORIA  R. 

Victoria,  by  the  grace  of  God,  Queen  of  the  United  Kingdom  of 
Great  Britain  and  Ireland,  defender  of  the  faith,  &c.,  &c.,  to  all  and 
singular  to  wliom  those  presents  shall  come,  greeting  : 

Whereas  a  convention  was  concluded  and  signed  at  London,  on  the 
eighth  day  of  February,  one  thousand  eight  hundred  and  fifty-three, 
between  us  and  our  good  friends  the  United  States  of  America,  for  the 
settlement  of  outstanding  claims  of  the  one  contracting  party  upon 
tlie  otlier  by  means  of  a  mixed  commission  : 

Now  know  ye,  that  we,  reposing  especial  trust  and  confidence  in  the 
approved  learning,  wisdom,  and  fidelity  of  our  trusty  and  well  be- 


u 


ADJUSTMENT  OF  CLAIMS  UNDER   THE 


loved  Edmund  Hornby,  esquire,  have  named,  made,  constituted,  and 
appointed,  and  do,  by  these  presents,  name,  make,  constitute,  and 
appoint  him  our  commissioner,  under  and  pursuant  to  the  said  con- 
vention, to  meet  the  commissioner  appointed,  or  to  be  appointed,  on 
the  part  of  our  good  friends  the  United  States  of  America,  and,  in 
conjunction  with  him,  to  investigate  and  decide  upon  all  such  claims 
as  shall  be  presented  to  the  notice  of  the  commissioners,  according  to 
the^rue  intent  and  meaning  of  the  convention  above  mentioned. 

In  witness  whereof,  we  have  signed  these  presents  with  our  own 
royal  hand. 

Given  at  our  court  at  Osborne  House,  the  twenty-sixth  day  of 
August,  in  the  year  of  our  Lord  one  thousand  eiglit  hundred  and 
fifty-three,  and  in  the  seventeenth  year  of  our  reign. 
By  her  Majesty's  command  : 

CLAKENDON. 


COPY  OF  DECLARATION  MADE  AND  SUBSCRIBED  BY  THE  COMMISSIONERS. 

We,  the  undersigned  commissioners,  appointed  in  pursuance  of  a 
convention  for  the  adjustment  of  certain  claims  of  citizens  of  the 
United  States  on  tlie  British  government,  and  of  British  subjects  on 
the  government  of  tl\e  United  States,  concluded  at  London  the  eighth 
day  of  February,  one  thousand  eight  hundred  and  fifty-three,  do  sev- 
erally and  solemnly  declare  that  we  will  impartially  and  carefully 
examine  and  decide,  to  the  best  of  our  judgment  and  according  to 
justice  and  equity,  without  fear,  favor,  or  affection  to  our  countries, 
upon  all  such  claims  as  shall  be  laid  before  us  on  the  part  of  the 
governments  of  the  United  States  and  of  her  Britannic  Majesty  re- 
spectively. 

In  witness  whereof  we  have,  this  fifteenth  day  of  September,  one 
thousand  eiglit  hundred  and  fifty-three,  made  and  subscribed  this  our 
solemn  declaration. 

NATHANIEL  G.  UPHAM, 
Commissioner  on  the  part  of  the  United  States. 

EDMUND  HORNBY, 

Commissioner  on  the  part  of  her  Majesty. 


CONVENTION   WITH   GREAT   BRITAIN. 


15 


tituted,  and 
stitute,  and 
le  said  con- 
)pointcd,  on 
•ica,  and,  in 
such  claims 
iccording  to 
;ioned. 
th  our  own 

xth  day  of 
indred  and 


ENDON. 


SIOXERS. 

mance  of  a 
;ens  of  the 
subjects  on 

tlie  eighth 
ee,  do  scv- 
1  carefully 
cording  to 

countries, 
)art  of  the 
ilajesty  re- 

niber,  one 
3d  this  our 

I  States. 


Majesty. 


THURSDAY,  September  15,  1853. 

I  The  commissioners  proceeded,  in  compliance  with  the  first  article 
iof  the  convention,  to  the  selection  of  an  arbitrator  "  or  umpire  to  act 
»in  any  case  or  cases  on  which  the  commissioners  might  differ  in 
opinion."  The  names pf  several  gentlemen  were  mentioned  on  either 
[side,  and  the  subject  Avas  deferred  for  further  consideration. 

The  mode  of  notifying  claimants  of  the  meeting  of  the  commissioners 
land  of  the  time  within  which  their  claims  should  be  presented  was  con- 
isidered,  and  it  was  determined  that  the  commissioners  should  severally 
I  notify  their  respective  governments  of  the  time  and  place  of  meeting  of 
I  the  commission,  and  request  that  such  notice  should  be  given  by  them 
to  claimants  of  the  pendency  of  the  commission  as  they  should  deem 
proper ;  which  resolution  was  duly  communicated  to  the  two  govern- 
ments.    The  commissioners  then  adjourned  to  meet  on  Saturday,  the 
;     -seventeenth  instant,  at  half-past  twelve. 

I  SATURDAY,  September  17,  1853. 

The  commissioners  met  i)ursuant  to  adjournment,  and  after  further 
conference  in  reference  to  tlie  appointment  of  an  umpire,  adjourned 
until  Monday,  the  IDtli  instant,  at  half-past  twelve  o'clock. 

u  MONDAY,  September  19,  1853. 

The  commissioners  agreed  that  they  would  communicate  to  each 
i  other  in  writing  their  opinions  relative  to  the  proper  qualifications  of 
an  umpire,  a-nd  the  nominations  they  proposed  to  make,  and  further 
adjourned  to  meet  on  Thursday,  tlie  twenty-second  instant. 

I  THURSDAY,  September  22,  1853. 

The  commissioners  met  pursuant  to  adjournment.  The  subject  of 
the  future  meetings  of  the  commissioners  was  taken  into  consideration, 
and  it  was  determined  tliat  from  and  after  tliis  date  meetings  be  holden 
at  the  office  of  the  commission,  at  '.>  Wellington  Chambers,  Lancaster 
.  Place,  Waterloo  Bridge,  London,  daily,  from  twelve  to  three  o'clock, 
Tintil  otherwise  ordered. 

^  WEDNESDAY,  October  12,  1853. 

§  Various  letters  having  jiassed  l)etween  the  commissioners  relative  to 
the  choice  of  an  umpire,  which  letters  are  placed  on  file,  they  this  day 


16 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


agreed  on  the  appointment  of  Martin  Van  Buren,  late  President  of 
the  United  States,  now  in  Florence,  to  act  as  umpire  in  case  of  disa- 
greement between  them, 

THURSDAY,  October  13,  1853. 

I 

A  joint  letter  was  drawn  up  and  forwarded  to  Mr.  Van  Buren,  com- 
municating to  him  his  appointment  by  the  commissioners  as  umpire 
under  the  convention  between  the  United  States  and  Great  Britain  of 
February  8,  1853. 

The  commissioners  then  proceeded  to  the  selection  of  a  secretary  or 
clerk,  in  accordance  with  the  sixth  article  of  the  convention,  and 
Nathaniel  L.  Upham  was  appointed  and  entered  upon  the  duties  of 
his  office.  tf 

The  clerk  was  directed  to  make  up  the  records  of  the  commission  to 
the  present  time,  from  minutes  furnished  by  the  commissioners. 

SATURDAY,  October  15,  1853. 

The  following  rules  and  regulations  relative  to  the  transaction  of 
business  before  the  commissioners  were  adopted  : 

I.  The  secretary,  or  clerk,  shall  keep  a  docket,  and  enter  thereon  a 
list  of  all  claims  as  soon  as  they  shall  be  filed,  specifying  briefly  the 
grounds  and  nature  of  sucli  claim. 

He  shall  also  keep  duplicate  records  of  the  proceedings  had  before 
the  commissioners,  and  of  the  docket  of  claims  filed  with  them,  so 
that  one  copy  of  each  shall  be  supplied  to  each  government. 

II.  Cases  shall  be  considered  in  order  for  the  action  of  the  commis- 
sioners whenever  they  shall  be  presented  to  them  for  their  decision, 
or,  if  parties  or  agents  for  the  governments  appear,  Avlieiiever  they 
shall  agree  that  the  same  shall  bo  taken  up  for  hearing. 

III.  All  claims  must  be  presented  within  six  months  from  the  fif- 
teenth of  September  last.  unh?ss  reasons  be  assigned  for  the  delay 
satisl'actory  to  the  commissioners,  and  where  cases,  by  leave  of  the 
conmiissioners,  arc  presented  after  sucli  time,  they  will  be  required  to 
be  in  order  for  hearing  as  soon  after  presenting  the  same  as  may  be. 

IV.  Cases  presented  within  the  first  six  months,  where  agents  for 
the  claimants  appear,  and  which  have  not  been  previously  disposed  of, 
will  be  required  to  be  in  order  for  hearing  and  decision  at  any  time 
alter  the  said  six  months  the  commissioners  may  direct. 


C30NVENTI0N   WITH   GREAT   BRITAIN. 


17 


President  of 
I  case  of  disa- 


i  Buren,  com- 
ers as  umpire 
eat  Britain  of 

a  secretary  or 

ivention,  and 

the  duties  of 

ommission  to 
doners. 


transaction  of 


ter  thereon  a 


briefly  the 


s  liad  before 
til  them,  so 
nt. 

the  commip- 
eir  decision, 
lenever  they 

from  the  fif- 
)r  the  dehiy 
leave  of  the 
required  to 
i  as  may  be. 
e  agents  for 
disposed  of, 
at  any  time 


V.  Claims  presented  to  the  commissioners  by  the  agents  of  either 
government  will  be  regarded  as  presented  by  their  respective  govern- 
ments, in  accordance  with  the  provisions  of  the  convention. 

TUESDAY,  October  18,  1853. 

• 

The  commissioners  having  met  as  usual,  John  A.  Thomas,  esq., 
agent  of  claims  on  the  part  of  the  government  of  the  United  States, 
was  introduced,  and  presented  to  them  his  commission  from  the  De- 
partment of  State,  a  copy  of  which  was  ordered  to  be  placed  on  record, 
which,  on  being  read,  is  as  follows  : 

COMMISSION  OF  THE  AGENT  ON  THE  PART  OF  THE  GOVERNMENT  OF  THE  UNITED 

STATES. 

Franklin  Pierce,  President  of  the  United  States  of  America,  to  all 
who  shall  see  these  presents,  greeting  : 

Know  ye,  that  reposing  special  trust  and  confidence  in  the  integrity 
and  ability  of  John  A.  Thomas,  of  New  York,  I  do  appoint  him  to 
be  agent  of  the  United  States  under  the  convention  with  her  Britannic 
Majesty  of  February  8,  1853,  on  the  subject  of  claims,  and  do  au- 
thorize and  empower  him  to  execute  and  fulfil  the  duties  of  that  offioe 
according  to  law. 

And  to  have  and  to  held  the  said  office  with  all  the  powers,  privi- 
leges, and  emoluments  thereunto  of  right  appertaining  unto  him,  the 
said  John  A.  Thomas,  during  the  pleasure  of  the  President  of  the 
United  States. 

In  testimony  whereof  I  have  caused  these  letters  to  be  made  patent 
and  tlie  seal  of  the  United  States  to  be  hereunto  affixed. 

Given  under  my  hand,  at  the  city  of  Washington,  the  nineteenth 
day  of  April,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
fifty-three,  and  of  tlie  independence  of  the  United  States  of  America 
the  seventy-seventh. 

FRANKLIN  PIERCE. 
By  the  President : 

William  L.  Marcy, 

Secretary  of  State. 


18 


ADJUSTMENT   OP  CLAIMS  UNDER  THE 


FKIDAY,  October  21,  1853. 

General  Thomas,  United  States  agent,  presented  the  statement  of, 
and  the  testimony  in,  the  claim  of  Messrs.  Rogers  &  Brothers,  of 
Salem,  Massachusetts  ;  he  also  introduced  J.  C.  Bancroft  Davis  as 
private  agent  of  the  claimants  in  the  above  case. 

After  a  partial  hearing,  the  further  consideration  of  the  claim  was 
referred  to  a  future  meeting,  and  the  commissioners  adjourned. 

FRIDAY  October  28,  1853. 

A  letter  was  received  by  the  commissioners  from  Mr.  Van  Buren, 
stating  his  inability  to  attend  to  the  duties  of  the  office  of  umpire  on 
account  of  other  engagements,  and  declining  the  acceptance  of  the 
appointment ;  which  letter  was  directed  to  be  placed  on  file. 

MONDAY,  October  31,  1853. 

The  commissioners,  after  conferring  relative  to  the  selection  of  an 
umpire  in  the  place  of  Mr.  Van  Buren,  agreed  upon  Joshua  Bates, 
esq.,  of  London,  to  act  as  arbitrator,  or  umpire,  in  case  of  disagree- 
ment between  them. 

General  Thomas  presented  papers  and  evidence  relative  to  the 
seizure  and  claim  of  the  barque  Jones,  and  introduced  Mr.  Rockwell, 
agent  of  the  claimants,  to  the  commissioners.  A  partial  hearing  was 
had  in  reference  to  the  case,  when  its  further  consideration  was  post- 
poned until  the  agent  appointed  by  her  Majesty's  government  could 
attend. 

TUESDAY,  November  1,  1853. 

The  commissioners  drew  up  a  joint  letter  to  Mr.  Van  Buren, 
acknowledging  the  receipt  of  his  note  of  October  the  twenty-second, 
in  which  he  declines  to  accept  the  appointment  of  umpire. 

They  further  notified,  by  letter,  Mr.  Bates  of  their  appointment  of 
him  to  act  as  umpire  in  case  of  a  disagreement  between  the  commis- 
sioners ;  copies  of  which  letters  were  ordered  to  be  placed  on  file. 

WEDNESDAY,  November  2,  1853. 

A  letter  was  received  from  Mr.  Bates  accepting  the  appointment  of 
arbitrator,  or  umpire,  tendered  him  by  the  commissioners  ;  which  let- 
ter was  placed  on  file. 


CONVENTION   WITH  GREAT   BRITAIN. 


19 


itement  of^ 
Tothers,  of 
t  Davis  as 

I  claim  was 
ned. 


7 an  Buren, 
umpire  on 
ance  of  the 
le. 


ction  of  an 
shua  Bates, 
of  disagree- 

itive  to  the 
r.  Rockwell, 
leaving  was 
>n  was  post- 
nment  could 


Van   Buren, 
enty-second, 

pointment  of 
the  commis- 
on  file. 


pointment  of 
which  let- 


I 


MONDAY,  November  14,  1853. 

Mr.  Bates  attended  the  meeting  of  the  commissioners  and  received 
from  them  liis  commission  as  arbitrator,  or  umpire,  which  is  as  fol- 
lows : 

COPY   OF  THE   umpire's  COMMISSION. 

To  all  and  singular  to  ivhom  these  presents  shall  come,  greeting : 

Whereas,  a  convention  was  concluded  and  signed,  at  London,  on 
the  eighth  day  of  February,  one  thousand  eight  hundred  and  fifty- 
three,  between  the  United  States  of  America  and  her  Britannic  Ma- 
jesty, for  the  adjustment  of  certain  outstanding  claims  of  citizens  of 
either  government  against  the  other,  by  which  it  is  provided  that  one 
commissioner  shall  be  named  by  each  of  said  governments,  with  power 
to  investigate  and  decide  upon  such  claims,  and  that  the  said  commis- 
sioners shall  name  some  tliird  person  to  act  as  arbitrator,  or  umpire,  in 
any  case  or  cases  on  which  they  may  differ  in  opinion ;  and  the  honorable 
Nathaniel  G,  Upham  having  been  appointed  commissioner  on  the  part 
of  the  United  States,  and  Edmund  Hornby,  esquire,  on  the  part  of  her 
Britannic  Majesty,  and  having  been,  severally,  duly  qualified  and 
entered  on  the  duties  of  their  commission,  and  on  the  thirty-first  day 
of  October,  1853,  having  agreed  on  Joshua  Bates,  esquire,  of  London, 
as  arbitrator,  or  umpire  : 

Now,  therefore,  be  it  known  that  we,  the  undersigned  commis- 
sioners, reposing  e8i)ecial  trust  and  confidence  in  the  impartiality,  in- 
tegrity, and  ability  of  said  Joshua  Bates,  esquire,  do  hereby,  by  virtue 
of  the  authority  vested  in  us  as  aforesaid,  appoint  him  arbitrator,  or 
umpire,  under  said  convention,  and  do  authorize  and  empower  him  to 
execute  and  fulfil  the  duties  of  said  offit  ,  with  all  the  powers  and 
privileges  connected  therewith,  according  to  the  provisions  of  the  con- 
vention. 

In  witness  whereof,  we  have  hereunto  severally  affixed  our  signa- 
tures this  thirty-first  day  of  October,  one  thousand  eight  hundred  and 
fifty-three. 

NATHANIEL  G.  UPHAM, 

mmissioner  on  the  part  of  the  United  States. 

EDMUND  HORNBY, 
'Commissioner  on  the  part  of  Great  Britain. 


20 


ADJUSTMENT  OP  CLAIMS  UNDER  THE 


The  umpire  then  made  and  subscribed  the  following  solemn  decla- 
ration, in  accordance  with  the  provisions  of  the  first  article  of  the 
convention  : 

COPY  OP  THE  umpire's  declaration. 

I  hereby  solemnly  declare  that  I  will  impartially  and  carefully  ex- 
amine and  decide,  according  to  tlie  best  of  my  judgment  and  accord- 
ing to  justice  and  equity,  without  fear,  favor,  or  affection,  to  the 
government  of  the  United  States  or  of  her  Britannic  Majesty,  all 
sucli  cliiiuiH  as  may  be  submitted  to  me  as  arbitrator  or  umpire  by  the 
commiissiotiers  of  the  said  governments  appointed  for  the  adjustment 
of  certain  claims  on  the  part  of  citizens  of  either  of  the  said  govern- 
ments against  the  other,  under  a  convention  signed  at  London,  Feb- 
ruary eiglit,  one  thousand  eight  hundred  and  fifty-three. 

In  witness  whereof,  I  have,  this  fourteenth  day  of  November,  made 
and  subscribed  this  solemn  declaration. 

JOSHUA  BATES. 

THURSDAY,  November  17,  1853. 

James  Hannen,  esq.,  attended  before  the  commissioners  and  pre- 
sented his  appointment  as  agent  of  claims  on  behalf  of  the  govern- 
ment of  her  Britannic  Majesty,  a  copy  of  which  was  ordered  to  be 
placed  on  record. 


COMMISSION  OF  THE  AGENT  ON  THE  PART  OP  GREAT  BRITAIN. 

VICTORIA  R. 

Victoria,  by  the  grace  of  God,  Queen  of  the  United  Kingdom  of 
Great  Britain  and  Ireland,  defender  of  the  faith,  &c.,  &c.,  &c.,  to  all 
and  singular  to  wliom  those  presents  shall  come,  greeting: 

Whereas,  a  convention  was  concluded  and  signed  at  London,  on 
the  eiglitli  day  of  February,  one  thousand  eight  hundred  and  fifty- 
three,  between  us  and  our  good  friends  the  United  States  of  America, 
for  the  .settlement  of  outstanding  chiinis  of  one  contracting  party  upon 
the  other  by  means  of  a  mixed  commission: 

Now  know  ye,  that  we,  reposing  especial  trust  and  confidence  in 
the  approved  learning,  wisdom,  and  fidelity,  of  our  trusty  and  well 
beloved  James  Hannen,  esq.,  have  named,  made,  constituted,  and  ap- 
pointed, and  do  by  these  presents  name,  make,  constitute,  and  ap- 


CONVENTION   WITH   GREAT   BRITAIN. 


21 


Icmn  decla- 
ticlo  of  the 


arcfnlly  ex- 
and  accord- 
tion,  to  the 
Vlajenty,  all 
ipire  by  the 
adjustment 
5aid  govern- 
ondon,  Feb- 

imbei'j  made 

BATES. 


ii's  and  pre- 
the  govcrn- 
dered  to  be 


Am. 

Kingdom  of 
,  &c.,  to  all 

London,  on 
d  and  iifty- 
of  America, 
;  party  upon 

:)nfidonce  in 
sty  and  well 
ted,  and  ap- 
ite,  and  ap- 


point him  our  agent,  under  and  pursuant  to  the  said  convention,  and 
do  hereby  authorize  and  empower  him  to  act  in  that  cai)acity  on  our 
part  in  regard  to  all  claims  which  may  have  been,  or  which  may  be, 
presented  to  the  notice  of  the  commissioners  appointed  or  to  be  c 
pointed  by  us,  and  by  the  President  of  the  United  States  of  America, 
under  and  pursuant  to  the  convention  aforesaid. 

In  witness  whereof,  we  have  signed  these  presents  with  our  royal 
hand. 

Given  at  our  court,  at  Windsor  Castle,  the  sixteenth  day  of  Novem- 
I  ber,  in  the  year  of  our  Lord  one  thousand  eight  hundred  and  fifty- 
three,  and  in  the  seventeenth  year  of  our  reign. 

By  her  Majesty's  command : 

CLARENDON. 


'^K' 


MONDAY,  November  28,  1853. 

Further  hearing  was  had  on  the  claim  of  Messrs.  Rogers  &  Co. 

General  Thomas,  United  States  agent,  offered  affidavits  on  belialf  of 

|the  owners  of  the  barque  Jones,  that  their  vessel  was  not  engaged  in 

Ithe  slave  trade;  and,  in  addition,  a  statement  of  the  amount  of  dara- 

iage  claimed. 

He  also  presented  an  abstract  of  the  claim  of  William  Cook  and 
lothers,  avowing  themselves  to  be  the  heirs  of  one  Mrs.  Frances  Shard, 
land  entitled  to  such  property  as  she  had  died  possessed  of,  and  which, 
Jfor  want  of  representatives,  it  was  alleged,  had  lapsed  to  the  crown, 
^nd  was  in  the  possession  of  her  Britannic  Majesty's  government. 


THURSDAY,  December  1,  1853. 


Mr.  Hanncn,  agent  of  her  Majesty's  government,  presented  to  the 
commissioners  the  claim  of  Messrs.  Kerford  &  Jenkin,  for  losses  sus- 
jtained  through  a  detention  by  the  United  States  army  of  merchandise 
forwarded  by  them  to  Mexico  during  the  years  184G  and  1847. 

SATURDAY,  December  3,  1853. 

j  Mr.  Hannen  presented  the  claim  of  William  McGlinchy,  for  the 
|illegal  seizure  and  detention  of  certain  papers  and  property  by  United 
|States  custom-house  officers  on  the  river  St.  John. 


f 
■A 


ADJUSTMENT   OP  CLAIMS  UNDER  THE 


TUESDAY,  December  6,  1853. 

The  claim  of  William  Allen,  for  the  seizure  and  detention,  at  San 
Francisco,  of  the  Joseph  Albino,  by  United  States  custom-house  offi- 
cers, under  charge  of  smuggling,  was  submitted  to  the  commissioners, 
and  was  disallowed. 

The  claim  of  Messrs.  Loback  &  Co.,  for  the  seizure  of  logwood,  at 
Tabasco,  by  United  States  naval  officers,  was  also  submitted  to  the 
commissioners,  and  was  disallowed. 

WEDNESDAY,  December  1,  1853. 

Mr.  Hannen  presented  the  claim  of  Messrs.  Calmont  &  Co.  for 
the  seizure  of  goods  by  Mexicans  while  under  convoy  of  United  States 
forces,  which  was  disallowed. 

A  claim  was  then  presented  for  the  return  of  the  duties  paid  on  the 
goods  seized,  which  was  deferred  for  consideration. 

THURSDAY,  December  15,  1853. 

Mr.  Hannen  attended  and  took  exception  to  the  jurisdiction  of  the 
commissioners  in  the  case  of  William  Cook  and  others,  and  presented 
a  protest  against  the  same,  which  was  ordered  to  be  placed  on  file. 

FRIDAY,  December  30,  1853. 

Mr.  Hannen  presented  the  claim  of  Christopher  Richardson  for  the 
seizure  of  the  Frances  and  Eliza,  at  New  Orleans,  and  the  claim  of 
Messrs.  Calmont  &  Greaves,  for  excess  of  duties  levied  on  their 
goods  at  Vera  Cruz. 

TUESDAY,  January  3,  1854. 

Mr,  Hannen  presented  the  claim  of  George  Buckham  for  the  seizure 
and  sale  of  the  brig  Lady  Shaw  Stewart,  at  San  Francisco,  for  alleged 
violation  of  the  revenue  laws. 

SATURDAY,  January  7,  1854. 

Mr.  Hannen  presented  the  claim  of  Francis  Watson  and  others, 
for  lands  in  the  territory  formerly  claimed  by  New  Brunswick,  but 
now,  by  adjustment  of  the  boundary,  situated  in  the  State  of  Maine. 


CONVENTION   WITH  GREAT  BRITAIN. 


2S 


ntion,  at  San 
m -house  offi- 
mraissioners, 

'  logwood,  at 
ttitted  to  the 


it  &  Co.  for 
United  States 

s  paid  on  the 


liction  of  the 
md  presented 
ed  on  file. 


irdson  for  the 

the  claim  of 

i^ied  on  their 


MONDAY,  January  9,  1854. 

Mr.  Hannen  presented  the  claim  of  Lord  Carteret  to  lands  in  North 
and  South  Carolina. 

TUESDAY,  January  10,  1854. 

Mr.  Hannen  presented  the  claim  of  the  Earl  of  Dartmouth  to  lands 
in  East  Florida. 

FRIDAY,  January  13,  1854. 

Mr.  Hannen  presented  the  claim  of  Jolin  Potts  for  damages  sus- 
tained in  Chihuahua,  in  Mexico,  from  the  American  forces. 

MONDAY,  January  16,  1854. 

Mr,  Hannen  presented  the  claim  of  the  Messrs.  Laurents  for  the 
seizure  of  property  in  Mexico  by  General  Scott. 

I  FRIDAY,  January  20,  1854. 

Mr.  Hannen  presented  the  claim  of  John  Lidgett  for  the  alleged 
illegal  seizure  of  the  ship  Albion  by  the  custom-house  authorities  of 
the  Territory  of  Oregon. 

TUESDAY,  January  24,  1854. 

General  Thomas  presented  the  claim  of  Thomas  Tyson,  of  Balti- 
i  more,  for  the  seizure  of  the  schooner  Fidelity,  at  Sierra  Leone,  by  the 
'  collector  of  that  port,  in  1825. 


or  the  seizure 
:o,  for  alleged 


I  and  others, 
runswick,  but 
ate  of  Maine. 


I  FRIDAY,  January  27,  1854. 

Mr.  Hannen  presented  the  claim  of  Thomas  Rider  to  remuneration 
for  losses  and  injury  sustained  by  his  arrest  and  detention  at  Matamo- 
ras  by  the  military  authorities  of  the  United  States. 

THURSDAY,  February  9,  1854. 

General  Thomas  presented  the  claim  of  the  fishing  schooner  Caro- 
line Knight,  for  its  illegal  seizure  and  sale,  at  Prince  Edward's  Island, 
by  the  officers  of  her  Majesty's  government. 


24 


ADJUSTMENT  OF   CLAIMS  UNDER   THE 


FRIDAY,  Fkbruary  17,  1854. 

Mr.  Hannca  presented  the  claim  of  MeHsrs.  Wliitemill  &  Lyon  for 
damages  caused  by  their  brigantine,  tlio  Confidence,  being  run  down 
in  the  Straits  of  Gibraltar,  by  the  United  States  frigate  Constitution, 
in  December,  1850. 

THURSDAY,  Febiiuary  23,  1854. 

General  Thomas  presented  the  affidavits  of  William  Mayhew,  rela- 
tive to  the  claim  of  Messrs.  Rogers  &  Brothers,  which  were  ordered  to 
be  placed  on  file. 

Mr.  Hannen  presented  the  claim  of  William  Patterson  for  injuries 
received  from  the  United  States  forces  at  Matamoras. 

MONDAY,  February  27,  1854. 

Further  hearing  was  had  relative  to  the  claim  of  Messrs.  Rogers  & 
Brothers,  which  was  submitted. 

The  claim  of  Thomas  Rider  was  then  argued  by  the  agents,  and, 
after  some  discussion,  deferred  for  further  consideration. 

MONDAY,  March  6,  1854. 

The  case  of  the  Frances  and  Eliza,  which  vessel  was  seized  at  New 
Orleans  by  the  United  States  revenue  officers,  was  considered. 

Mr.  Hannen  prr^sented  the  claim  of  Duncan  Gibbs  for  the  seizure  of 
the  ship  Baron  Renfrew,  in  California ;  and  the  claim  of  James  Crooks 
for  amount  of  judgment  of  the  court  of  admiralty,  in  the  case  of  the 
Lord  Nelson,  which  was  seized,  prior  to  the  war  of  1812,  by  the 
United  States  ship-of-war  Oneida,  on  Lake  Ontario. 

MONDAY,  March  13,  1854. 

Mr.  Hannen  presented,  on  behalf  of  the  government  of  her  Majesty, 
the  following  claims: 
Messrs.  Glen  &  Co. 
Maurice,  Evans  &  Co. 
Barque  Pearl. 
The  ship  Herald. 
Charles  Green. 
The  James  Mitchell. 


CONVENTION   WITH  GREAT   BRITAIN. 


Hudson  Bay  Coinpany. 

A  claiiii  for  drawback. 

For  Hupplies  furniHlu'd  American  troopa. 

For  seizure  of  the  Hchooner  Cadboro'. 

For  interruption  of  trade  of  the   wteamor  Prince  of  Wales,  on 

tlie  Columbia  river. 
For  return  of  certain  revenue  duties. 
For  sei/.uro  of  the  lieaver  and  Mary  Dare. 
The  Union. 
JoHOpb  Wilson. 
The  Young  Dixon. 
Godfrey,  Pattison  &  Co. 
Messrs.  Butterficld  &  Bros. 
The  Irene. 

Messrs.  Coteswortb,  Powell  &  Pryor. 
H.  U.  Dcrwig  and  others,  Florida  bondholders. 
Miller  &  Mackintosh. 
George  Houghton. 
Hon.  W.  Black. 
Sam.  C.  Johnston. 
Thomas  Whyte. 
Alexander  McLeod. 
P.  B.  Murphy. 
Charles  B.  Hall. 
The  Mary  Anne. 
The  Sir  Robert  Peel. 
The  Great  Western  Steamship  Co. 
G.  Rotchford  Clarke. 

Representatives  of  Colonel  Elias  Durnford. 
Messrs.  Baker  &  Co. 
Anglo-Mexican  Mint  Co. 
The  Crosthwaite. 
Ship-owner's  Society. 
The  Prosperity. 
The  Duckenfield. 
The  Science. 


*■ 


J! 


: 


26 


ADJUSTMENT  OP  CLAIMS  UNDER  THE 


i 


TUESDAY,  March  14,  1854. 

General  Thomas  presented  papers  relative  to  the  following  claims, 
on  behalf  of  the  government  of  the  United  States : 
Brig  Creole. 
Schooner  John. 
Brig  Enterprize. 
Sch     ner  Washington. 
The  Levan  Lank. 
Brigantine  Volusia. 
Brig  Cyrus. 
Schooner  Director 
The  Maria  Dolores. 
The  Tigris  and  Seamew 
The  Only  Son. 
The  Julius  and  Edward. 
Brig  Lawrence 
Brig  Charlotte. 
The  Jubilee. 

John  McClure  and  others. 
The  Cicero. 

The  Olive  Branch.  ♦ 

Brig  Evelina. 
Schooner  Hero. 

Schooner  Washington,  seized  1818. 
Schooner  Argus. 
The  Robert. 

■I 

Schooner  Hermosa. 

Barque  John  A.  Robb. 

The  Joseph  Cowperthwait. 

Schooner  Pallas. 

The  Elvira. 

George  Attwood. 

And  a  claim  for  return  of  duties  levied  on  woolen  goods. 

WEDNESDAY,  March  15,  1854. 

The  following  claims,  for  return  of  money  collected  for  duties  in 
New  York,  were  presented  by  Mr.  Hannen,  viz: 


CONVENTION   WITH   GREAT   BRITAIN. 


27 


James  Buckley. 

Arnon  Buckley. 

James  Mallalieu. 

Francis  8.  Buckley. 

Charles  Kenworthy. 

George  Shaw. 

Samuel  Bradbury. 

John  Piatt. 

Joseph  Wrigley. 

William  Broadbent. 

Charles  Clifton. 

James  Shaw. 

Amon  Schofield. 
He  also  presented  the  claims  of — 

William  Bottomley's  executors. 

James  Kogers. 

The  executors  of  James  Holford. 

Sam.  Shaw. 

Sam.  Bradbury. 

Piatt  &  Duncan. 

George  Shaw. 

John  Taylor. 

Alfred  T.  Wood. 
Mr.  Hannen  also  presented  the  claim  of  Charles  Wirgman,  agent 
of  Timothy  Wiggin,  J.  Knight  &  Co.^  and  of  fifty-one  others,  for  re- 
l)ayment  of  excess  of  duties  charged  on  cotton  goods  in  ports  of  the 
United  States. 

Hearing  was  had  in  the  case  of  the  Frances  &  Eliza,  and  it  was  sub- 
mitted for  the  decision  of  the  commissioners. 

FRIDAY,  March  17,  1854. 

Further  hearing  was  had  in  the  case  of  the  barque  Jones,  which 
vessel  had  been  seized  at  St.  Helena,  on  charge  of  being  engaged  in 
the  slave  trade,  and  for  being  in  British  waters  without  a  national 
character. 

SATURDAY,  March  18,  1854. 

The  hearing  in  the  case  of  the  barque  Jones  was  continued,  and  the 
claim  was  finally  submitted  to  the  commissioners. 


'8 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


f  V 


TUESDAY,  March  21,  1854. 

Mr.  Hanncn  presented,  by  leave,  the  claim  of  Messrs.  Weymouth 
and  others,  respecting  certain  bonds  guarantied  by  the  Territory  of 
Florida.  • 

Hearing  was  had  on  the  claim  of  Duncan  Gibbs,  when  the  case  was 
closed  and  submitted  for  decision. 

THURSDAY,  Makcii  23,  1854. 

Hearing  was  had  on  the  claim  of  Thomas  Tyson,  relative  to  the 
seizure  of  the  schooner  Fidelity,  of  Sierra  Leone,  on  a  charge  of  having 
smuggled  goods  on  a  previous  voyage,  and  the  case  was  submitted. 

The  claim  of  James  Crooks,  relative  to  the  Lord  Nelson,  was  also 
heard  and  submitted. 

MONDAY,  April  3,  1854. 

The  case  of  William  Cook  and  others  was  assigned  for  hearing  on 
the  13th  April. 

Hearing  was  had  by  the  agents  in  the  case  of  the  Albion,  John 
Lidgett,  owner. 

WEDNESDAY,  April  5,  1854. 

Letters  were  submitted  by  General  Thomas,  from  the  State  Depart- 
ment, by  which  it  appeared  that  the  case  of  William  McGlinchy, 
which  had  been  heard  on  the  third  of  December  last,  had  been  settled. 

Hearing  was  then  had  on  the  question  of  the  jurisdiction  of  the 
court  in  the  claim  of  the  Messrs.  Laurents,  and  after  full  argument 
of  the  same  it  was  submitted  to  the  commissioners. 

SATURDAY,  April  8,  1854.     * 

General  Thomas  made  some  remarks  in  continuation  of  the  hearing 
in  the  case  of  the  Messrs.  Laurents. 

Hearing  was  had  on  the  claim  of  Joseph  Wilson,  .  officer  of  the 
Canadian  government,  on  account  of  an  alleged  illegal  arrest  in 
Michigan,  and  the  case  was  submitted  to  the  commissioners. 

The  claim  of  Alfred  T.  Wood  for  compensation,  in  consequence  of 
his  being  arrested  and  detained  by  citizens  of  the  State  of  Maine 
while  resident  in  New  Brunswick,  was  also  submitted. 


CONVENTION   WITH   GREAT  BRITAIN. 


m 


TUESDAY,  Ai'UiL  11,  1854. 

General  Tliomas  presented  affidavits  concerning  the  goods  of  certain 
parties  on  board  the  Jones. 

Hearing  was  had  on  the  claim  of  Samuel  Johnston  for  damage  on  a 
charge  of  viohiting  the  immigration  act,  and  the  case  was  submitted 
for  decision. 

Mr.  Ilancien  was  heard  on  the  chiim  of  Robert  Hill  for  damage 
arising  from  the  capture  of  the  Union  by  an  American  ship-of-war 
after  ponce  had  taken  place,  and  the  same  was  submitted  after  a  few 
remarks  by  the  agent  of  the  United  States  government_,  and  disallowed. 

The  claim  of  Riddell  Robson,  for  the  seizure  and  detention  of  the 
Irene,  was  also  submitted  for  decision  and  disallowed. 

THURSDAY,  Apuil  20,  1854. 

J.  L.  Clarke,  esq.,  attended  before  the  commissioners,  and  sub- 
mitted, as  the  attorney  of  the  claimants,  an  argument  in  answer  to 
the  protest  filed  by  the  agent  of  her  Majesty's  government  as  to  the 
claim  of  William  Cook  and  others. 

Mr.  Hannen  proposed  to  reply  in  writing,  and  the  case  was  ad- 
journed for  this  purpose. 

SATURDAY,  Ai-iul  22,  1854. 

General  Thomas  presented,  by  leave,  the  claim  of  Amos  Frazer  as 
to  the  brig  Douglas. 

The  commissioners  having  been  unable  to  agree  in  the  case  of  the 
barque  Jones,  opinions  were  severally  delivered  by  them,  and  the  case 
was  directed  to  be  connnitted  to  the  decision  of  the  umpire. 

Some  discussion  was  had  on  the  case  of  McCalmont  &  Greaves, 
when  the  further  hearing  of  the  same  was  postponed. 

TUESDAY,  Ai'iuL  25,  1854. 

The  hearing  on  the  claim  of  ]\[ossrs.  (*almont  &  Greaves  was  con- 
tim;ed,  and  the  case  was  tinally  submitted  for  the  decision  of  the  com- 
missioners. 

FRIDAY,  May  5,  1854. 

Heaving  was  had  in  the  claim  of  Mr.  G.  Rotchford  Clarke  for  the 
recovery  of  the  value  of  lands  in  Vermont,  granted  prior  to  the  ad- 
mission of  that  State  into  the  Union. 


80 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


SATURDAY,  May  6,  1854. 

Mr.  Clarke  was  further  heard  relative  to  his  claim  to  lands  now  in 
the  State  of  Vermont,  and  the  case  was  submitted  for  the  decision  of 
the  commissioners. 

WEDNESDAY,  May  10,  1854. 

Mr.  John  L.  Clarke,  counsel  in  the  case  of  the  schooner  John,  cap- 
tured after  peace  was  concluded  in  1814,  was  heard,  and  the  claim 
submitted.  Mr.  Hannen  read  his  reply  to  the  argument  filed  by  Mr. 
Clarke  in  the  case  of  William  Cook  and  others. 

SATURDAY,  May  13,  1854. 

Hearing  was  had  as  to  the  brig  Lady  Shaw  Stewart,  seized  at  San 
Francisco. 

General  Thomas  submitted,  by  leave,  additional  evidence  in  the 
case  of  the  Frances  and  Eliza. 

Hearing  was  had  in  the  case  of  the  ship  Albion,  Lidgett,  owner. 

A  memorial  was  also  submitted  by  General  Thomas  in  the  claim  of 
the  brig  Douglas. 

The  case  of  the  Enterprize  was  assigned  for  hearing  on  Tuesday, 
the  23d  of  Mav  instant. 


I'-i 


MONDAY,  May  15,  1854. 

Mr.  Hannen  made  further  remarks  as  to  the  question  of  damage  in 
the  case  of  the  brig  Lady  Shaw  Stewart,  and  the  case  was  submitted. 

General  Thomas  introduced,  by  leave,  the  affidavit  of  Mr.  Frye,  in 
the  case  of  the  barque  Jones. 

THURSDAY,  May  18,  1854. 

Hearing  was  had  in  the  case  of  the  barque  Pearl,  James  Tindale, 
owner,  and  the  case  was  submitted. 

Mr.  Hannen  was  heard  in  the  claim  of  Messrs,  McCalmont  &  Co. 
for  return  of  duties  paid  on  goods  afterwards  seized  by  Americans. 

The  umpire  met  the  commissioners  by  their  appointment,  and  ar- 
rangements were  made  as  to  the  mode  of  proceeding  in  the  cases  to  bt 
submitted  for  his  decision. 


i!;i 


CONVENTION  WITH  GREAT   BRITAIN. 


u 


The  papers  in  the  claim  of  the  barque  Jones,  on  which  the  commis- 
sioners had  disagreed,  with  the  opinions  delivered  by  them,  were 
directed  to  be  sent  to  the  umpire. 

TUESDAY,  May  23,  1854. 

Mr.  Hannen  presented  a  memorial  on  behalf  of  James  Crooks,  in  the 
case  of  the  Lord  Nelson.  Various  English  and  American  claims  for 
returns  of  duties  were  presented  by  Messrs.  Hannen  and  Thomas. 

Hearing  was  commenced  in  the  case  of  the  brig  Enterprize. 

WEDNESDAY,  May  24,  1854. 

Hearing  in  the  case  of  the  Enterprize  was  continued  and  concluded, 
and  the  case  was  submitted  for  the  decision  of  the  commissioners. 

FRIDAY,  May  26,  1854. 

The  claims  of  the  representatives  of  Colonel  Elias  Durnford,  and 
the  claim  of  Thomas  Whyte,  for  certain  lands  in  Florida,  was  sub- 
mitted by  Mr.  Hannen. 

Hearing  was  also  had  on  the  claims  of  Hon.  W.  Black  and  of  Fran- 
cis Watson  and  others,  to  lands  in  the  State  of  Maine,  and  on  the 
claim  of  George  Houghton  for  specie  taken  from  him  by  pirates,  who 
were  subsequently  captured  by  a  United  States  vessel  of  war. 

Mr.  Hannen  also  presented,  by  leave,  the  claim  of  certain  indivi- 
dual holders  of  bonds  guarantied  by  the  Territory  of  Florida. 

THURSDAY,  June  1,  1854. 

General  Thomas  presented,  by  leave  of  the  commissioners,  the  claim 
of  Robert  Roberts  for  the  seizure  of  the  ship  Amelia,  in  January,  1815. 

SATURDAY,  June  3,  1854. 

Hearing  was  had  in  the  case  of  the  brig  Creole,  tlie  ship  Amelia, 
and  the  claim  of  James  Young,  for  slaves  captured  during  the  war 
and  sold  in  the  West  Indies  by  British  government  officers.  These 
claims  were  then  submitted  to  the  commissioners  for  decision. 

The  case  of  William  Cook  and  others  was  assigned  for  Wednesday, 
19th  instant. 


32 


ADJUSTMENT   OF  CLAIMS   UNDER  THE 


ns 


WEDNESDAY,  June  1,  1854. 

In  the  case  of  the  barque  Jones.  Genern,!  Thomas  presented  certain 
papers  and  correspondence  from  tlie  legation  of  the  United  States  in 
London,  which  were  directed  to  be  furnished  to  the  umpire. 

He  also  presented  the  correspondence  of  the  governments  in  the  case 
of  the  Creole. 

Mr.  Hfinnen  presented  the  claim  of  Messrs.  Dawson  and  others,  for 
bonds  issued  by  the  republic  of  Texas. 

The  case  of  the  Confidence  was  assigned  for  hearing  on  Saturday, 
the  10th,  and  the  cases  of  Pattison  &  Mitchell  on  Thursday,  the  29th 
instant. 

FRIDAY,  June  9,  1854. 

General  Thomas,  by  leave,  presented  the  claim  of  the  brig  Brook- 
line,  for  the  seizure,  in  1848,  and  removal  of  one  of  her  crew  as  a 
deserter  from  her  Majesty's  navy. 

SATURDAY,  June  10,  1854. 

A  hearing  was  had  in  the  case  of  the  brigantine  Confidence,  by  Dr. 
Adams,  the  special  agent  of  the  claimants,  and  General  Thomas. 

General  Thomas  then,  by  leave,  presented  two  claims  for  property 
on  board  the  brig  Creole,  and  the  claim  of  Henry  Schieflfelin  for  the 
detention  and  refusal  of  the  British  government  to  carry  out  an  award 
of  the  court  of  admiralty. 

MONDAY,  June  12,  1854. 

The  commissioners  took  into  consideration  the  propriety  of  requesting 
from  the  two  governments  an  extension  of  the  time  originally  assigned 
for  the  termination  of  the  commission,  the  better  to  enable  them  to 
dispose  of  the  very  great  and  unanticipated  amount  of  business  which 
had  devolved  upon  them,  and  a  letter  was  drawn  up  by  them  to  the 
American  minister,  and  to  her  Majesty's  principal  secretary  of  state 
for  foreign  affairs,  recommending  the  extension  of  the  commission  for 
four  months. 

WEDNESDAY,  June  14,  1854. 

General  Thomas,  by  leave,  presented  the  memorial  of  Charles  Barry, 
in  behalf  of  claims  for  returns  of  duties  on  woolens,  levied  contrary 


CONVENTION   WITH   GREAT    BRITAIN. 


sa 


ed  certain 

[  States  in 

in  the  case 

)thers,  for 

Saturday, 
-,  the  29th 


ig  Brook- 
crew  as  a 


ice,  by  Dr. 
lomas. 
r  property 
lin  for  the 
t  an  award 


equesting 
y  assigned 
e  them  to 
ss  which 
oiu  to  the 
y  of  state 
nission  for 


10 


les  Barry, 
I  contrary 


to  the  treaty  of  1815,  and  also  the  claims  of  James  Heard  and  of  the 
Merchants'  Insurance  Company  of  New  Orleans,  to  property  in  slaves 
on  hoard  the  hrig  (Jreole. 

Mr.  Hannen  presented  the  claim  of  Charles  Ulide  for  the  seizure  of 
goods  by  the  United  States  army,  and  a  memorial  of  Andrew  Mitchell 
relative  to  the  return  of  duties  levied  contrary  to  the  treaty  of  1815. 

Hearing  was  had  on  the  claim  of  William  Cook  and  others  by  Mr. 
John  L.  Clark,  attorney  for  the  claimants,  and  tlie  case  was  submitted 
to  the  commissioners. 

THURSDAY,  Junk  15,  1854. 

Mr.  llauneii  presented  a  memorial  on  behalf  of  Messrs.  ffodfrey, 
Pattison  &  Co.,  for  interest  on  tlieir  claim. 

The  cummis-sioners  received  a  letter  from  the  counsel  on  the  claim 
of  the  Florida  bondholders,  asking  for  a  postponement  of  the  hearing 
in  their  case  to  June  21,  which  was  agreed  to,  and  the  secretary  was 
directed  to  request  the  attendance  of  the  umi)ire  at  that  time. 

Mr.  Charles  Barry,  by  leave,  presented  claims  relative  to  the  return 
of  duties  on  woolens. 

MONDAY,  June  10,  1854. 

(leneral  Thomas  submitted,  by  permission,  papers  in  the  oases  of  the 
l.rig  Enterpri/e  and  schooner  Hermosa,  and  in  that  of  the  Brookline. 

In  the  case  of  the  Confidence,  Mr.  Hannen  presented  a  letter  written 
by  one  of  the  sailors  on  board,  dated  at  Lisbon. 

The  case  of  Piatt  &  Duncan  was  assigned  for  hearing  on  Saturday, 
July  1,  at  1 1  o'clock. 

WEDNESDAY,  Jine  '1\,  1854. 

Hearing  was  had  on  the  claim  of  the  Florida  bondholders.  Mr. 
Rolt,  Queen's  counsel,  and  Mr.  Cairns,  special  agents  and  counsel  of 
the  claimants,  and  Mr.  Thomas  for  the  United  States  ;  the  case  was 
committed  for  the  decision  of  the  commissioners. 

Mr.  Bates,  the  umpire,  attended  on  the  hearing. 

SATURDAY,  June  24,  1854. 

In  the  claim  of  Messrs.  Kerford  &  Jenkin,  for  damages  caused 
through  delays  of  a  caravan  of  merchandise  by  United  States  forces 
in  Mexico,  a  hearing  was  had  and  the  case  submitted. 
3 


84^ 


ADJUSTMENT  OF  CI.AIMS  UNDER   THE 


THURSDAY,  JixR  29,  1854. 


The  claim  of  Messrs.  Pattison  &  Co.,  and  of  Andrew  Mitchell,  for 
return  of  duties  levied  contrary  to  treaty  of  ISl.',  was  heard  and  sub- 
'mitted.  * 

In  the  claim  of  the  brig  Brooklino  a  hearing  was  also  had,  and  the 
case  was  Kubmitted. 

SATURDAY,  July  1,  1854. 

In  the  claim  of  Messrs.  Piatt  tV:  Duncan,  hearing  was  had  before 

'Hf:     the  commissioners  by  Mr.  Butt,  Queen's  counsel,  and  special  agent 

and  counsel  of  the  claimants,  and  the  case  was  submitted  for  decision. 

WEDNESDAY,  Jlly  6,  1854. 

General  Thomas  presented  for  hearing  the  claim  of  the  brigantine 
Volusia,  for  seizure  and  condemnation  on  charge  of  being  concerned 
in  the  slave  trade,  which  was  submitted. 

Hearing  was  had  on  the  claim  of  the  Great  Western  Steamship 
Company,  for  return  of  duties  paiil  on  coals  used  at  sea,  and  the  case 
was  submitted. 

SATURDAY,  July  8,  1854. 

Hearing  was  had  on  the  claim  of  Messrs.  liutteriield  &  Brothers, 
and  the  case  was  submitted. 

General  Thomas,  on  behalf  of  the  claimant.!*,  jiresented  the  protest 
of  the  captain  in  the  case  of  the  Volusia. 

Hearing  was  had  on  the  claims  of  Timothy  Wiggins,  et  als.,  (Wirg- 
man,  agent,)  and  on  the  claim  of  J.  P.  Oldfield  it  Co.;  and  the  cases 
were  submitted  for  decision. 

WEDNESDAY.  July   12.  1854. 

The  claim  of  the  executors  of  James  HoUbrd  was  a.'-signed  for  hear- 
ing July  18. 

Mr.  Hannen  presented  aflidavits  in  llie  case  of  Joseph  Wilson, 
heard  April  8,  1854. 

Hearing  was  had  on  the  claim  of  the  owners  of  tlie  schooner  Caroline 
Knight,  for  seizure  of  the  same  in  1852;  and  the  ca.se  was  submitted 
to  the  commissioners. 


jUl, 


CONVENTION   WITH   GEEAT  BRITAIN. 


35 


cll,  for 
1(1  8ub- 

md  the 


I  before 
il  agent 
lecision. 


igantine 
oncerned 

teamship 
.  the  case 


Brothers, 

10  protest 

,(Wirg- 
the  cases 


I  for  hear- 

Wilson, 

n-  Caroline 
subnritted 


TUESDAY,  July  18,  1854. 

Hearing  was  had  on  behalf  of  the  executors  of  James  IlolforJ,  rela- 
tive to  the  i»aynient  of  Texan  bonds,  by  Mr.  Cairns,  special  agent  of 
the  claimants.  General  Thomas  read  a  protest  against  the  jurisdic- 
tion of  the  commissioners  over  this  case,  which  was  directed  to  be 
placed  on  file. 

The  case  of  Messrs.  Dawson  and  others  was  assigned  for  hearing  on 
Friday  the  28th,  and  those  of  the  Hudson  Bay  Company  on  Saturday 
the  29th  instant. 

SATURDAY,  July  15,  1854. 

The  claims  of  the  brig  Crosthwaite,  the  Prosperity,  the  ship 
Science,  and  the  Duckenfield,  were  submitted  to  the  commissioners. 

Hearing  was  had  on  the  case  of  the  John  A.  Robb,  which  was 
submitted. 

In  the  claims  of  the  Argus  and  Washington,  General  Thomas  was 
heard  as  to  the  interpretation  of  the  treaty  of  1818  relative  to  the 
fisheries,  and  Mr.  Hannen  had  leave  to  reply  at  a  future  time. 

The  case  of  the  Maria  Dolores  was  assigned  for  August  the  9th, 
proximate. 

FRIDAY,  July  21,  1854. 

The  claim  of  the  Cicero,  for  seizure  and  detention  in  1809^  was  re- 
jected, as  being  without  the  jurisdiction  of  the  commission. 

The  claims  of  the  Joseph  Cowperthwait,  for  detention  and  search  at 
Cape  Coast  Castle ;  of  the  brig  Charlotte,  for  refusal  of  the  admiralty 
court  to  award  costs  for  its  detention ;  and  of  the  brig  Douglas,  for 
detention  and  being  taken  out  of  its  coiirse  on  the  coast  of  Africa; 
were- severally  iieard  and  submitted. 

MONDAY,  July  24,  1854. 

In  the  claim  of  William  Cook  and  others,  the  cunuuissicmers  de- 
cided that  tlie  claim  is  not  included  within  the  terms  of  the  convention^ 
and  it  was  therefore  dismissed  on  the  ground  (»f  want  of  jurisdiction. 

il^tlDAY,  July  28,  1854. 

The  claim  of  I'hilip  Dawson  and  others,  relative  to  Texas  bonds, 
was  argutd  by  Jlr.  Cairns.     Exception  was  taken  by  General  Thomas 


36 


ADJUSTMENT    OP  CLAIMS   UNDER   THE 


n 


tothe  jurisdiction  of  the  commissioners,  on  tlie  ground  tliiit  Mr.  Daw- 
son was  a  naturali/cd  citizen  of  the  United  States. 

General  Thomas  filed,  by  leave,  an  affidavit  in  tlio  case  of  the  brig 
Douglas. 

'.  SATURDAY,  Ji  ly  29,  1854. 

Hearing  was  had  on  the  several  claims  of  the  Hudson  Bay  Com- 
pany, for  detention  of  the  steamer  Beiwer,  for  the  prevention  of  trade 
on  the  Columbia  river  by  their  steamer  Prince  of  Wales,  for  expendi- 
tures in  obtaining  the  release  of  persons  taken  caittive  by  the  Indians, 
and  for  the  payment  of  drawback  on  goods  re-exported  from  Oregon. 

The  claims  of  said  company  for  the  refunding  of  duties  levied  on 
live  stock  for  the  seizure  of  the  schooner  Cadboro'  and  their  brigan- 
tine  Mar;   Dare,  were  withdrawn. 

TI^ESDAV,  August  1,  1854. 

The  claim  for  return  of  duties  levied  between  1815  and  1823  was 
taken  up  for  hearing,  and  the  letter  of  Mr.  Everett  relative  to  the 
effect  of  the  treaty  on  the  duty  imposed  on  rough  rice  was  read  and 
placed  with  the  papers. 

The  cases  of  the  Washington  and  Argus,  involving  the  fishery  ques- 
tion, were  discussed,  and  the  claims  submitted  for  decision. 

WEDNESDAY,  August  2,  1854. 

In  the  claim  of  the  brig  Cyrus,  Dumas,  owner,  seized  and  detained 
on  the  coast  of  Africa  on  charge  of  being  concerned  in  the  slave  trade, 
a  hearing  was  had,  and  the  case  was  submitted. 

WEDNESDAY,  August  9,  1854. 

In  the  claim  of  the  Maria  Dolores,  Colonel  Aspiuwall,  agent  of  the 
parties,  appeared,  and  made  a  statement  of  the  facts,  and  the  case  was 


H                  submitted. 

WEDNESDAY,  August  16,  1854. 

Hearing 

was  had  in  the  case 

of  the  schooner  Levin 

Lank, 

James 

Sullivan,  owner,  for  the  seizure 

and  subsequent  condenmation  of  the 

same  at  St. 

Helena. 

-_•  - 

. -^--      ^ 

CONVENTION    WITH    GREAT    URITAIN. 


37 


r.  Daw- 
thc  l)rig 


ay  Com- 
of  trade 
expcndi- 
Indians, 
Oregon, 
evietl  on 
r  brigan- 


1823  was 
c  to  the 
read  and 

ery  <\uo«- 


dctained 
ive  trade, 


.nit  of  the 
e  case  was 


ak,  James 
ion  of  the 


THUllSDAY,  Amv^T  17,  IS')!. 

The  claim  of  .Jolui  McCliiro  and  othcrS;  relative  to  the  removal  of 
slaves  from  Cumberland  Island,  was  heard  ;  also  tlie  elaim  of  Henry 
Schiofll'liri.  by  Mr.  Lovel,  on  the  ciuestion  of  the  jurisdietion  of  the 
ffoniinissioners. 

(Jeneral  Thonuis  plaeed  on  file  a  copy  of  his  protest  as  to  the  Texan 
bond  claims,  made  liy  him  on  Friday,  the  '28th  ultimo. 

FRIDAY,  August  18,   18r)4. 

The  commissioneri!  received  information  from  the  Department  of 
State  at  Washington  ihat  the  time  for  the  close  of  the  commission 
had  been  extended  for  four  months  by  a  convention  entered  into  be- 
tween the  United  States  and  Great  Britain.  A  copy  of  this  conven- 
tion was  forwarded  to  the  commissioners  by  her  Britannic  Majesty's 
secretary  of  state  for  foreign  affairs,  which  being  read  is  as  follows: 

Convention  extendin(j  the  term  allowed  for  the  operations  of  the.  Commis- 
sion cstahlif^hed  under  the  convention  of  Fehruanj  8,  18515,  for  the 
mutual  settlement  of  claims. 

Whereas  a  convention  was  concluded  on  the  8th  day  of  February, 
1853,  between  the  United  States  of  America  and  her  Britannic  Majesty 
for  the  settlement  of  outstanding  claims  by  a  mixed  commission,  lim- 
ited to  endure  ft)r  twelve  months  from  the  day  of  the  first  meeting  of 
the  commissioners  ;  and  whereas  doubts  have  arisen  as  to  the  practi- 
cability of  the  business  of  the  said  commission  being  concluded  within 
the  period  assigned,  the  President  of  the  United  States  and  her  Ma- 
jesty the  Queen  of  the  United  Kingdom  of  Great  Britain  and  Ireland 
are  desirous  the  time  originally  fixed  for  the  duration  of  the  commis- 
sion should  be  extended,  and  to  this  end  have  named  plenipotentiaries 
to  agree  upon  the  best  mode  of  effecting  this  object,  that  is  to  say  : 
the  President  of  the  United  States,  William  L.  Marcy,  Secretary  of 
State  of  the  United  States  ;  and  her  Majesty  the  Queen  of  the  United 
Kingdom  of  Great  Britain  and  Ireland,  John  Fiennes  Crampton,  es- 
quire, her  Majesty's  envoy  extraordinary  and  minister  plenii)otentiary 
at  Washington,  who  have  agreed  as  follows : 

Article  I.  The  high  contracting  parties  agree  that  the  time  limited 
in  the  convention  above  referred  to  for  the  termination  of  the  commis- 


38 


ADJUSTMENT   OF  CLAIMS  UNDER   THE 


hIoii  shall  bo  extondcd  tor  a  period  not,  oxcccdiiij;  f«»iir  iiioiitliH  fiorq 
tlio  15tli  of  .Septoinbor  next,  should  such  extension  ho  doomed  noeos- 
sary  by  the  conunisslonois,  or  the  umpire,  in  ease  of  their  disapjree- 
ment;  it  bcin^'  aj^reod  that  notliinj;'  contained  in  this  artiolo  shall  in 
anywise  alter  or  extend  the  time  oiif^lnally  fixed  in  iho  said  oonvon- 
tion  for  the  presentation  of  claims  to  the  oommissioners. 

Artiilk  II.  The  j)resont  convention  shall  be  ratified,  and  the  ratifi- 
cations sliall  be  exchan<j;od  at  London  as  soon  as  possible,  within  tour 
months  from  the  date  thereof. 

In  witness  whereof,  the  respective  plonipot  on  claries  have  signed  the 
same,  and  have  aftixed  thereto  the  seals  of  their  arms. 

Done  at  Washington  the  seventeenth  day  of  July,  in  the  year  of 
our  Lord  one  thou.sand  eight  hundred  and  fifty-four. 

WM.  L.  MAUCY.  [i,.  s.| 

JOHN  F.  CPvAMPTON.     [l.  s.] 

TUESDAY,  AuousT  22,  1854. 

The  commissioners  adjourned  to  Monday,  the  25th  of  September 
next. 


MONDAY,  Skptemher  25,  1854. 


Mr.  Hannen  asked  permission  for  Alexander  McLood,  who  was  de- 
sirous of  leaving  for  Canada,  to  make  a  statement  relative  to  his  claim 
before  the  commissioners. 

In  the  claim  of  the  brig  Lawrence,  Colonel  Aspinwall  was  heard, 
as  agent  of  the  claimants,  and  the  ca.se  was  adjourned  to  Friday,  Oc- 
tober P)th. 

TUESDAY,  Ski>tkmbkr  2G,  1854.  • 

The  commissioners  being  unable  to  agree  in  the  cases  of  the  Enter- 
prize,  Hermosa,  and  Creole,  and  of  the  Washington,  Argus,  and  Di- 
rector, as  well  as  in  the  case  of  the  Messrs.  Laurent,  severally  delivered 
their  opinions. 

These  cases  were  then  ordered  to  be  conmiitted  to  the  decision  of 
the  umpire. 

\JEDNESDAY,  Sepikmukr  27,   1854. 

In  accordance  with  the  j)erniission  of  the  commissioners,  given  on 
the  25th  instant,  Mr.  McLeod  made  a  statement  before  them  relative 


^'1 


CONVENTION   WITH    GREAT    BRITAIN. 


39 


itliH  iVonj 

oil    lU'COS- 

disiv^rce- 
u  hIiiiU  in 
il  ciinvon- 


lie  year  of 

[L.    S.] 


Sei)tcmber 


lio  was  de- 
0  his  claim 

vas  heard, 
'riday,  Oc- 


tlie  Enter- 
18,  and  Di- 
y  delivered 

decision  of 


i 


to  hiH  claim,  it  l)eing  uiid(>rHto()d  that  the  <iuestioii  wlicther  or  not  the 
claim  was  properly  before  the  commia.sioners  Hhould  not  he  prejudiced 
l)y  such  proccediiit;'. 

Mr.  Bates  calleil,  and  had  a  eonsultation  with  the  (UMiimissionerH, 
and  the  case  of  the  Messrs.  Lanrents  wiis  assij^ned  for  hoarinj;  before 
tiie  nnipirc  for  Tlnirs(hiy  next,  October  f). 

WEDNESDAY.  U(rro.,KK  4,   iHol. 

b'urther  hearing?  was  had  on  the  claim  of  Henry  SehiefFelin,  by  Mr. 
liovell,  Hi)e('ial  a^jjentfor  the  claimants. 


TinmSDAY,  OcTOUKU  5.  1854. 


s,  given  on 
em  relative 


Agreeably  to  the  appointment  made  on  +ho'  27th  ultimo,  hearinj^ 
was  had  on  the  claim  of  the  Messrs.  Laurent  before  the  umpire,  and 
the  ease  was  submitted. 

The  claims  of  the  Washin;^t(»n,  Argus,  and  others,  were  assigned 
for  hearing  on  Wednesday,  the  11  th  October. 

FRIDAY.  OoTonKU  C>,   1854. 

In  the  case  of  the  brig  Lawrence,  Colonel  Aspinwall,  special  agent 
of  the  claimants,  had  a  further  hearing.  General  Thomas  submitted 
a  paper  relative  to  the  case  of  the  brig  Confidence. 

He  also  n'ad  a  letter  from  the  State  Department,  relative  to  the 
suits  brouglit  for  violations  of  the  revenue  laws  on  which  certain 
claims  before  the  commissioners  are  founded  ;  and  relative  to  the  re- 
turn of  duties  on  coals  used  at  sea,  on  which  drawback  is  claimed. 

The  claim  of  the  Evelina  was  brought  up  for  hearing,  and  the  case 
submitted.  Discussion  was  had  as  to  the  amount  of  damages  in  the 
case  of  the  Tigris  and  Seamew. 

TUESDAY,  OcTomni  10,  1854. 

Mr.  Spinks  appeared,  and  Wednesday,  November  1,  was  assigned 
for  the  re-opening  of  the  case  of  Messrs,  Piatt  &  Duncan. 

WEDNESDAY,  Octoher  11,  1854. 

Hearing  was  had  before  the  nmi)ire,  by  the  respective  agents,  on  the 
claims  of  the  Washington,  Argus,  and  others,  as  to  the  interpretation 
of  the  convention  of  1818,  relative  to  the  fisheries,  and  the  cases  were 
severally  submitted. 


40 


ADJUSTMENT   OF   CLAIMS   UNDER   THE 


The  case  of  the  Enterprise  was  assigned  for  hearing  on  Wednesday, 
October  18.  The  elairns  of  the  Prince  of  Wales,  the  Amelia,  the 
Brookline,  of  James  Young,  and  of  William  Patterson,  the  barque 
John  A.  Robb,  and  the  schooner  Fidelity,  were  severally  disallowed. 

The  claim  of  the  Hudson  Bay  Co.,  for  drawback,  was  allowed. 

TPIURSDAY,  October  19.   IS'A. 

In  the  claims  of  the  brig  Enterprize,  and  Creole,  and  the  schooner 
Herrnosa^  hearing  was  commenced  before  the  umpire. 

SATURDAY,  October  21,  1854. 

Hearing  was  continued  in  the  Enterprize_,  Hermosa,  and  Creole,  and 
the  cases  were  submitted.  The  claim  of  Messrs,  King  &  Gracey,  Mr. 
Barry,  agent  for  the  claimants,  was  assigned  for  hearing  on  the  25th 
October  instant,  of  Mr.  Kenworthy  on  the  Ist,  and  Messrs.  Dawson 
and  als.  on  the  2d  November  next. 

MONDAY,  October  23,  1854. 

In  the  claims  of  the  Jubilee,  for  salvage,  of  the  Robert,  the  Elvira, 
and  the  Olive  Branch,  the  commissioners  decided  the  evidence  to  be 
incomplete,  and  the  cases  were  accordingly  dismissed. 

The  claims  «)f  the  Crosthwaite,  of  the  Ship-owner's  Society,  in  the 
case  of  the  Ann,  of  the  Duckenfield,  the  Science,  the  Prosperity,  and 
of  the  Anglo-Mexican  Mint  Co.,  were,  for  the  same  reason,  also  dis- 
missed. 

WEDNESDAY,  October  25,   1854. 

Hearing  was  had  as  to  the  claiTus  of  Messrs.  Barry  and  others,  for 
the  return  of  duties  on  woolen  goods,  levied  contrary  to  the  provisions 
of  the  treaty  of  commerce  of  1815. 

Mr.  Hannen,  by  leave,  presented  for  the  use  of  the  umpire  the 
opinion  of  Dr.  Phillimore  on  the  claim  of  Charles  Uhde,  as  applicable 
to  the  question  raised  in  tin  case  of  the  Messrs.  Laurent. 

(Jeneral  Thomas  was  to  reply  in  writing  to  the  same. 

SATURDAY,  OcruiiEK  28,   1854. 

The  commissioners  delivered  their  opinions  relative  to  the  Frances 
&  Eliza,  Baron  Renfrew,  Tigris  S:  Seamew,  the  Lady  Shaw  Stewart, 
and  the  Albion,  and  these  cases  were  severally  referred  to  the  umpire 
for  decision. 


CONVENTION   WITH   GREAT    BRITAIN. 


41 


Inestla)', 
L'li.i,  the 
2  barque 
lallowed. 
rod. 


schooner 


cole,  and 
icey,  Mr. 
the  25th 
,  Dawson 


le  Elvira, 
nee  to  be 

ty,  in  the 
rity,  ami 
,  also  dis- 


thers,  for 
)rovision8 

npirc  the 
ipplicable 


e  Frances 
V  Stewart, 
le  umpire 


t 


Tlie  claim  of  the  baniue  Pearl  was  disallowed.  The  commissioners 
having  disagreed  upon  the  claim  of  the  Beaver,  it  was  referred  to  the 
umpire  for  decision. 

WEDXESDAY,  Novkmbkii  1,  1854. 

The  case  of  Piatt  A-  Duncan  was,  on  leave,  re-opened,  and  General 
Thomas  jjioposed  to  jjresent  certain  affidavits;  but  objection  being 
made  to  the  introduction  of  further  te.«!timoiiy,  and  it  being  .suggested 
that  the  case  would  probably  turn  on  tlie  question  of  jurisdiction,  tlie 
aftidavits  were  withdrawn. 

Some  remarks  were  made  by  Messrs.  Spinks  and  Thomas,  on  the 
question  of  jurisdiction,  and  the  effect  of  the  treaty  of  commerce  as 
bearing  on  that  question,  when  the  case  was  submitted. 

In  the  case  of  Charles  Kenworthy,  jMr.  Willes,  special  agent  and 
counsel  of  the  claimant,  was  heard,  and  the  claim  was  submitted  for 
decision,  and  in  case  of  disagreement,  to  that  of  the  umpire,  who  was 
present. 

SATURDAY,  November  4,  1854. 

In  the  claim  of  James  Shaw,  the  umpire  being  present,  Mr.  Willes, 
special  agent  and  counsel  for  the  claimant,  was  heard,  and  the  case 
was  submitted. 

The  case  of  the  Lawrence,  the  John,  and  of  Messrs.  Rogers,  were 
referred  to  the  umpire  as  to  the  amount  of  damages  to  be  awarded. 

SATURDAY,  Nove.mber  11,  1854. 
Hearing  was  had  before  the  commissioners  and  umpire  by  Hon. 
Reverdy  Johnson,  special  counsel  of  Philip  Dawson  and  others,  holders 
of  bonds  issued  by  the  republic  of  Texas,  and  General  Thomas  for  the 
United  States  ;  the  case  was  submitted. 

MONDAY,  NovEMBim  13,  1854. 

In  the  claim  of  the  Lady  Shaw  Stewart,  the  umpire  being  present, 
Mr.  Hillyard  made  a  statement  relative  to  the  amount  of  damages 
claimed,  and  the  case  was  submitted  for  decision. 

In  the  case  of  the  Only  Son,  hearing  was  had  in  the  presence  of  the 
umpire,  when  the  eonmiissioners  disagreed  upon  the  allowance  of  the 
same. 

The  claim  of  Messrs.  Piatt  &  Duncan  was  disallowed. 

The  claim  of  Charles  Kenworthy  was  disallowed. 

The  claim  of  James  Shaw  was  disallowed. 


■•'W 


42 


ADJUSTMENT   OF  CLAIMS   UNDER   THE 


The  commissioners  being  unable  to  agree  in  the  case  of  the  Florida 
bondholders,  that  claim  was  referred  to  the  umpire  for  decision ;  ah 
was  also  that  of  Messrs.  Kerford  &  Jenlcin. 

WEDNESDAY,  NovKMnKii  15,  1854. 

in  the  case  of  Messrs.  Kerford  &  Jenkin,  Mr.  Hannen  and  General 
Thomas  were  respectively  heard,  the  umpire  being  present,  and  the 
claim  was  submitted  for  his  decision. 

THURSDAY,  November  1G,  1854. 

Hearing  was  had  before  Hie  umpire  in  the  claim  of  the  brig  Law- 
rence, which  was  submitted.  Appointments  were  made  for  hearing 
in  the  case  of  the  James  Mitchell  on  Monday,  and  for  the  claim  of 
Messrs.  Cotesworth,  Powell  &  Pryor,  and  the  brig  Confidence,  on  the 

«ame  day. 

SATURDAY,  November  18,  1854. 

The  umpire  being  present,  Mr.  Hannen  was  heard  ui)on  the  case  of 
the  steamer  Beaver,  and  General  Thomas  in  reply. 

General  Thomas  placed  on  file  a  letter  in  the  claim  of  the  Only  Son. 

In  the  Florida  bond  case,  an  appointment  was  made  for  hearing  on 
Tuesday  week  at  twelve  o'clock. 

MONDAY,  November  20,  1854. 

Hearing  was  hail  before  the  umpire  in  the  case  of  the  brigantine 
Confidence,  by  Dr.  Adams,  Queen's  counsel,  and  by  General  Thomas. 

In  the  case  of  the  assignees  of  the  James  Mitchell,  hearing  was  had 
before  the  commissioners  and  umpire,  by  Messrs.  Hannen  and  Thomas, 
and  both  cases  were  submitted  for  decision.  Hearing  was  also  had 
before  them  in  the  ease  of  Messrs.  Cotesworth,  Powell  &  Pryor,  as  to 
the  recovery  of  certain  lands  granted  in  Texas,  which  was  also  sub- 
mitted for  decision. 

SATURDAY,  November  25,  1854. 

The  commissioners  disallowed  the  claims  of  the  brig  Cyrus,  the 
Hero,  the  schooner  Levin  Lank,  and  the  claim  of  Messrs.  Cotesworth, 
Powell  &  Pryor. 

They  also  agreed  on  an  award  in  the  case  of  tlie  brig  Douglas. 

The  claims  of  the  Lord  Nelson,  the  Volusia,  and  the  brig  Lawrence, 
were  severally  disagreed  upon,  and  appointments  were  then  nuvde  for 
hearing  the  same  before  the  umpire. 


01 


;he  Florida 


eoision;  as 


id  General 
it,  and  the 


brig  Law- 
or  hearing 
le  claim  of 
nee,  on  the 


the  case  of 

Only  Son. 
hearing  on 


CONVENTION    WITH    GREAT   BRITAIN. 

MONDAY,  NovEMDER  27,  1854. 


48 


hrigantine 
il  Thomas, 
ig  was  had 
d  Thomas, 
s  {ilso  had 
*ryor,  as  to 
^  also  suh- 


Oyrus,  the 
jotesworth, 

niglas. 
Lawrence, 
n  made  for 


i 


In  the  claim  of  the  hrigantine  Volusia,  John  Graham,  owner,  hear- 
ing was  had  by  the  agents  of  the  two  governments,  and  the  same  was 
submitted  for  the  decision  of  the  umpire. 

WEDNESDAY,  Novkmbeu  21),  lSr,4. 

The  umpire  reported  to  the  commissioners  hi.s  opinion  upon  a  por- 
tion of  the  claims  referred  to  him  for  decision.  The  claim  of  the 
executors  of  James  Holford  for  tlie  payment  of  bDuds  issued  by  the 
republic  of  Texas,  tlie  um])ire  decided  to  be  without  the  jurisdiction 
of  the  commissioners. 

The  claim  of  Philip  Dawson,  for  the  payment  of  bonds  similarly 
issued,  was  also  decided  to  be  without  their  jtirisdiction. 

In  the  claim  of  the  liarque  Jones,  and  for  sundry  ventures  thereon, 
the  umpire  awarded  the  sum  of  one  hundred  thousand  six  hundred 
and  twenty-five  dollars,  due  the  15th  t)f  January,  1855. 

In  the  c;  ir!i  of  the  schooner  John,  the  umpire  awarded  to  the  own- 
ers, or  tii  I  M  ;al  representatives,  the  sum  of  thirteen  thousand  six 
hundred  and  eight  dollars,  due  the  loth  of  January,  1855. 

In  the  claim  of  the  ship  Lady  Shaw  Stewart,  the  umpire  awarded 
tlie  sum  oi'  six  thousand  dollars,  due  the  15th  of  January,  1855. 

In  the  claim  of  the  Frances  and  Eliza,  the  umpire  awarded  the  sum 
of  thirty-four  thousand  two  hundred  and  twenty-seven  dollars,  due 
the  15th  of  January,  1855. 

In  the  claim  of  the  Hudson  Bay  Company's  steamer  Beaver,  the 
umpire  awarded  the  sum  of  one  tliousand  dollars,  all  of  which  awards 
are  in  full  of  said  claims,  and  due  to  the  claimants  from  the  respective 
governments  on  the  15th  of  Januarv,  1855. 

FBIDAY,  Deckmuku  1,  1854. 

In  the  claim  of  the  Hudson  Bay  Company,  for  drawback,  the  sum 
of  fifteen  hundred  and  twenty-three  dollars  and  sixty-eight  cents  was 
awarded  by  the  commissioners. 

In  the  claim  of  the  Hudson  Bay  Company  for  supplies  furnished  vol- 
unteers of  the  settlers  against  the  Indians,  the  commissioners  .awarded 
the  sum  of  three  thousand  one  hundred  and  eighty-two  dollars  and 
twenty-two  cents  in  full  of  said  claim  to  the  15t':  of  January,  1855. 

In  the  claim  of  the  Albion,  the  umpire  awarded  the  sum  of  twenty 
thousand  dollars,  duo  the  15t]i  of  JanuarV,  1855. 


•1»i»- 


44 


ADJUSTMENT   OF  CLAIMS  UNDER   THE 


The  claim  of  the  Volusia  was  disalloweil  by  the  umpire. 

In  the  claim  of  tixe  ship  James  Mitchell,  the  umpire  awarded  the 
sum  of  twenty  thousand  dollars,  due  the  loth  of  January,  1G55. 

The  conmiissioners  disagreed  in  the  case  of  JMcCalmont  &  Greaves, 
in  that  of  Calmont  &  Co.,  and  on  the  amount  to  be  awarded  in  the 
claim  of  the  Great  Western  Stoiiinship  Comijany. 

Ai)puintmeuts  for  hearing  wore  made  for  those  of  McC!j|,lmont  & 
Greaves  and  (Mmont  &  Co.  on  Thursday  at  12  o'clock,  m. 

THURSDAY,  Dwkmber  7,  1854. 

In  the  claim  of  Messrs.  McCalmont  &  Greaves,  lor  return  of  duties 
levied  on  goods  imported  into  Vera  Cruz  during  the  Mexican  war, 
hearing  was  had  before  the  umpire.  Also  in  the  claim  of  Messrs.  Cal- 
mont &  Co.,  for  return  of  duties  levied  on  goods  taken  possession  of  by 
Mexicans,  while  under  a«convoy  of  United  States  forces,  and  both 
cases  were  submitted  to  the  umpire  for  his  decision. 

In  the  claim  of  Messrs.  Rogers  &  Brothers,  the  umpire  awarded  the 
sum  of  seven  thousand  six  hundred  and  seventy-six  dollars  and  ninety- 
six  cent?,  due  the  15th  of  January,  1855. 

SATURDAY,  December  9,  1854. 

In  the  claim  of  Miller  &  Mackintosh,  hearing  was  had  before  the 
commissioners  and  umpire.  Hearing  was  also  had  before  the  umpire 
in  the  claim  of  the  Lord  Nelson,  and  both  cases  were  submitted  for 
decision. 

The  case  of  the  (Jreat  Western  Steamship  Company  was  argued  by 
the  agents  and  submitted  for  the  decision  of  the  umpire. 

The  claim  ot  the  Sir  Robert  Peel  was  submitted  to  the  commission- 
ers on  the  papers. 

MOND'AY,  December  11,  1854. 

In  the  claim  of  Alexander  McLeod  for  his  arrest  and  imprisonment 
in  New  York  on  charge  of  being  engaged  in  the  destruction  of  the 
steamer  Caroline,  hearing  was  had  in  the  presence  of  the  umpire.  Mr. 
McLeod  was  also  personally  heard  relative  to  his  claim,  when  the  same 
was  submitted  to  the  commissioners  for  decision,  and  in  case  of 
their  disagreement  to  the  umpire. 

In  the  claim  of  Charles  Barry,  on  behalf  of  American  importers  of 
woolens,  discussion  was  had  as  to  the  evidence  requisite  to  establish 
proof  of  such  ownership. 


CONVENTION   WITH   GREAT   BRITAIN. 


45 


commission- 


WEDNESDAY,  Decemijeu  13,  1854. 

Ill  the  claim  of  Mr.  Barry  for  roturn  of  <hitie8  improperly  levied, 
further  discussion  was  had  as  to  the  evidence  necessary  to  prove  the 
ownership  of  tlie  parties  for  whom  duties  were  paid,  and  a  form  of 
evidence  to  be  obtained  was  drawn  up  for  this  pui])ose. 

THURSDAY,  December  14,  1854. 

In  the  claim  of  the  schooner  Only  Son,  the  umpire  awarded  the 
sum  of  one  thou.sand  dollars,  due  the  15tli  of  January,  1855. 

The  claim  of  the  schooner  Lord  Nelson,  the  umpire  decided  to  be 
not  within  the  jurisdiction  of  the  commissioners. 

In  the  claim  of  the  Tigris  and  Seamew,  the  umpire  awarded  the 
sum  of  twenty -four  thousand  and  six  dollars  and  forty  cents,  due  the 
15th  of  January,  1855. 

In  the  claim  of  the  Great  Western  Steamship  Company,  the  um- 
pire awarded  the  sum  of  thirteen  thousand  five  hundred  dollars,  due 
the  15th  of  January,  1855. 

In  the  claim  of  Miller  &  Mackintosh,  the  conunissionors  awarded 
tlie  sum  of  six  thousand  dollars,  due  the  15th  of  January,  1855. 

The  case  of  the  Florida  bondholders  was  disallowed  by  the  umpire. 

The  commissioners  gave  instructions  to  Messrs.  (^)uilter  &  Ball  to 
complete  and  verify  certain  calculations  in  the  claim  preferred  by  the 
firm  of  Messrs.  Godfrey,  Pattison  &  Co.,  of  Glasgow. 

WEDNESDAY,  DECKMr.Eu  20,  1854. 

The  claim  of  the  Messrs.  Laurents  was  disallowed  by  the  umpire, 
as  not  being  in  the  jurisdiction  of  the  commissioners. 

SATURDAY,  Decemher  23,  1854. 

In  the  claim  of  the  fishing  schooner  Argus,  the  umpire  awarded 
the  sum  of  two  thousand  dollars,  due  on  the  15th  of  January,  1855. 

In  the  claim  of  the  schooner  Washington,  the  umpire  awarded  the 
sum  of  three  thousand  dollars  in  full  of  said  claim,  to  the  15th  of 
January,  1855. 

In  the  claim  of  the  brig  Enterpri/c,  the  umpire  awarded  to  the  Au- 
gusta Insurance  Banking  Company  the  sum  of  sixteen  thousand  dol- 
lars, and  to  the  Charlestown  Marine  Insurance  Comimny  the  sum  of 
thirty-three  thousand  dollars,  in  full  of  their  respective  claims  to 
the  15th  of  January,  1855. 


*«■ 


46 


ADJUSTMENT    OF  CLAIMS   UNDER   THE 


In  the  claim  of  the  Baron  Renfrew,  the  umpire  awarded  the  sum  of 
six  thouHand  dollars,  in  full  of  said  claim  to  the  15th  of  January, 

1855. 

TUESDAY,  Deckmber  26,  1854. 

The  claim  of  Messrs.  Calmont  &  Co.,  for  return  of  duties  paid  on 
goods  captured  by  the  Mexicans,  was  disallowed  by  the  umpire. 

WEDNESDAY,  December  27,  1854. 

The  papers  constituting  the  claim  of  Andrew  Mitchell  were  sent  to 
Messrs.  Quilter  &  Ball,  with  instructions  from  commissidtiers  to  com- 
plete and  verify  the  same. 

SATURDAY,  December  30,  1854. 

Hearing  was  assigned  in  the  cases  of  Charles  Barry  for  Wednesday 
next,  at  1  o'clock. 

Sundry  cases  relative  to  the  payment  of  customs  duties  at  New  York 
were  assigned  for  hearing  on  Thursday  next,  at  1  o'clock. 

TUESDAY,  January  2,  1855. 

The  commissioners  disallowed  the  claim  of  the  Sir  Robert  Peel. 

In  the  claim  of  George  Houghton,  the  commissioners  award  the 
sum  of  two  tliousand  five  hundred  dollars. 

The  commissioners  disagreed  on  the  allowance  of  the  claim  of  Alex- 
ander ]\IcLeo(l,  and  that  case  was  referred  to  the  umj)ire. 

SATURDAY,  January  (5,   1855. 

In  the  claim  of  the  executors  of  J(»lin  Taylor,  hearing  was  had  by 
M'-.  Butt,  Queen's  counsel,  and  (Jeueral  Thomas,  as  also  in  the  claim 
of  Samuel  Bifidbury  ;  both  of  which  were  submitted  for  decision. 

Ill  tlie  claii;t  of  Andrew  Mitchell,  agent  for  11.  G.  Fialay  Brotliers 
uikI  others,  tlio  commissioners  awarded  the  sum  of  twenty  tliousand 
six  hundred  and  two  dollars  and  sixtv-four  cents. 

Appointment  was  made  for  hearing  in  the  claim  of  Cliarles  lljido 
for  12  o'clock  on  Monday,  for  tlic  ('laini  of  William  Hroadbent  at  12 
on  Tuesdav,  and  for  that  of  Messrs.  Shaw  at  2  o'clocic  tlu'  same  dav, 

MONDAY,  January  8,  185."). 

Hearing  was  had  by  the  agents  before  the  conuuissioners  and  umi)irc 
in  the  claim  of  Charles  Uhde  for  the  alleged  confiscation  of  merchan- 


I 


CONVENTION  WITH   GREAT   BRITAIN. 


47 


had  bv 


I 


dise  at  MatamoraH  during  the  Mexican  war,  and  the  case  was  sub- 
mitted for  decision. 

The  claim  of  the  Evelina  was  disallowed. 

In  the  claim  of  McCalniont  and  Greaves,  the  umpire  awarded  the 
sum  of  eleven  thousand  seven  liundred  and  thirty-three  dollars  and 
fifty-eight  cents,  in  full  of  the  s^ame  to  January  15,  1855. 

TUESDAY,  January  9,  1855. 

In  the  claim  of  the  brig  Creole,  the  umpire  awarded  the  sum  of  one 
hundred  and  ten  thousand  *hre(  dred  and  thirty  dollars,  in  full  of 
the  same  to  January  15,  1      '. 

The  commissioners  disagreed  on  the  allowance  of  the  claim  of 
Charles  Uhde,  and  it  was  referred  to  the  umpire. 

WEDNESDAY,  January  10,  1855. 

In  the  claim  of  William  Broadbent,  hearing  was  had,  and  the  same 
submitted  for  decision. 

Hearing  was  also  had  in  the  claim  of  Messrs.  George  and  Samuel 
Shaw,  which  was  submitted. 

The  claim  of  Messrs.  Kerford  and  Jenkin  was  tlisallowed  by  tlic 
umpire. 

THURSDAY,  January  11,  18r,5. 

In  the  claim  of  the  schooner  Hermosa,  the  umpire  awarded  to  the 
Louisiana  State  Marine  and  Fire  Insurance  Coni[»any  the  sum  of  eight 
thousand  dollars,  and  to  the  New  Orleans  Insurance  Company  eight 
thousand  dollars,  in  full  of  their  respective  claims  to  January  15, 1855. 

FRIDAY,  January  12,   1855. 
Hearing  was  had  by  Mr.  Butt,  Queen's  counsel,  on  the  claim  of 
William  Bottomley's  executors,  for  the  leturn  of  moneys  alleged  to 
have  been  illegally  exacted  from  him  by  the  collector  of  customs  at 
New  York,  and  it  was  submitted  for  decision. 

SATURDAY,  January  1*},  1855. 

The  claims  of  the  fishing  schooners  Pallas  and  the  Director  were 
disallowed  by  the  umpire  for  want  of  evidence. 

Tlie  claim  of  the  schooner  Washington,  seized  in  1818,  and  con- 
demned at  Halifax,  in  Nova  Scotia,  for  violation  of  the  hovering  act, 
(fee,  was  disallowed  by  the  commissioners,  the  evidence  in  said  case 
being  incomplete. 

The  claim  of  the  brig  Lawrence  was  disallowed. 


48 


ADJUSTMENT  OF   CLAIMS   UNDER    THE 


In  the  claim  of  Messrs.  Godfrey,  Pjvttison  &  Co.,  the  commissioners 
awarded  the  sum  of  sixty-one  thousand  six  hundred  and  eighty-nine 
dollars  and  fifty-four  cents,  in  full  of  the  sai./ ;,  due  January  15, 1855. 

In  the  claim  of  the  brigantine  Confidence  the  umpire  awarded  the 
jij^flum  of  nine  thousand  nine  hundred  and  forty-six  dollars  and  twenty 
cents,  in  full  of  the  same  to  January  15,  1855. 

The  claims  of  Samuel  Bradbury,  of  John  'i^aylor,  of  George  and 
Samuel  Shaw,  of  William  Bottomley,  and  of  William  Broadbent, 
were  severally  disallowed. 

In  tlie  claim  of  J.  P.  Oldfield  &  Co.,  the  commissioners  awarded 
the  sum  of  three  thousand  and  ninety-nine  dollars  and  fifty-four  cents, 
in  full  of  the  claim  of  said  company  to  January  15,  1855. 

In  the  claims  of  Charles  Wirgman,  agent  for  T.  Wiggin  and  others, 
the  commissioners  awarded  the  sum  of  thirty  thousand  four  hundred 
and  seventy-three  dollars  and  forty-eight  cents,  in  full  of  said  claims, 
respectively,  to  January  15,  1855. 

The  commissioners  affixed  their  names  to  the  United  States  docket 
of  claims,  and  also  to  the  British  docket  of  claims,  as  applicable  to 
the  several  decisions  and  awards  made  in  each  docket  respectively. 

They  also  drew  up  and  signed  a  genr  il  order  at  the  close  of  said 
<locket,  by  which  all  awaids  were  to  ta.  'jffect  from  tliis  day,  and  are 
made  payable  to  the  claimants,  their  attorneys,  k'gal  representatives, 
or  assigns. 

MONDAY,  jAjaTAiiy  15,  1855. 

The  commissioners  met  to-day  with  the  umi)iro  for  tlie  considera- 
tion of  claims  remaining  undisposed  of. 

The  umpire  announced  liis  o})inion  in  the  cases  of  Charles  llhde 
and  Alexander  McLeod. 

Directions  were  given  for  the  collection  of  all  accounts  of  expendi- 
tures incurred  during  the  sittings  of  the  commission,  and  for  the  com- 
pletion of  the  records  and  proceedings  in  full  to  this  date. 

The  report  of  the  commissioners  to  their  resi)ective  government.? 
was  then  drawn  up  and  signed,  and  the  business  of  the  commission 
terminated. 

N.  L.  UPHAM, 
Secretary  of  Connmssion  an  Claims. 


CONVENTION   WIT..   OBBAT   BRITAIN. 


49 


ssioners 
ity-nine 
5,1855. 
rdetl  the 
i  twenty 


rge  and 
oadbent, 


CLAIMS  OF  AMERICAN  CITi;iENS  UPON  THE  GOVERNMENT  OF  HER  BRI- 
TANNIC MAJESTY.  WITH  THE  JUDGMENTS  AND  AWARDS  THEREON. 


awarded 
iir  cents, 

d  others, 

hundred 

d  claims, 

)8  docket 

ilicable  to 

tively. 

3C  of  said 
and  are 
ntatives, 


jonsidera- 

les  Tlhde 

expendi- 
thc  com- 

crnments 
anmission 

:am, 

Glaims. 


1.  N.  L.  llo(!Kii'S  Axi>  Brotiieus. 

f  resented  October  21,  1853 — Heard  November  28 — Further  atliduvils  filed  February  23. 
1854 — Furtlier  lieard  February  27,  and  submitted — Disagreement  of  commissioners  on  the 
amount  of  damngo — Award  of  umpiro. 

For  tlie  return  of  customs  duties  assessed  in  the  Bay  of  Islands, 
New  Zealand,   during  the  years  1840  and  1841. 

Noirmhcr  4. — The  commissioners  disagreed  as  to  the  amount  of 
<lamage  to  he  awarded,  and  the  case  was  referred  to  the  umpire,  and 
was  submitted  by  the  agents  for  his  decision  on  the  papers. 

Decenihct'  T. — The  umpire  awarded  the  sura  of  seven  thousand  six 
hundred  and  seventy-six  dollars  and  ninety-six  cents,  due  on  the 
.15th  of  January,  1855. 

2.  fSciiooxER  FiitKLiTV,  TJiomas  Tyson,  oivner. 

Presented  January  24,  1854 — Heard  March  93,  and  submitted — Disallowed. 

For  seizure  nf  the  above  vessel  at  Sierra  Leone  on  a  charge  of 
;smuggling. 

Oi'fohcr  11. — The  vessel  was  discharged  after  a  brief  detention, 
and,  it  aiii>earing  to  the  commissioners  that  there  existed  probable 
<auso  of  seizure,  the  claim  was  disallowed. 

J}.  Barqis  Joni5<,   /'.  ./.  Farnhcoa  d  Co..  oioners. 

Presented  October  31,  IPJ^I — Furtlier  papers  presented  November  28 — Heard  March  17  and 
18,  1854 — Further  affidavits  filed  April  11  and  May  15— Disagreement  of  commissionera — 
Heard  before  umpire — Award  of  umpire. 

For  seizure  at  St.  Helena,  on  charge  of  being  concerned  in  the  Af- 
rican slave  trade,  and  for  assessment  of  costs  on  the  vessel  at  Sierra 
Leone,   and  sale  of  vessel  and  cargo. 


60 


ADJUSTMENT   OP  CLAIMS   UNDER   THE 


April  22. — The  commissioners  being  unable  to  agree,  severally  de- 
livered their  opinions,  which  were  placed  on  file,  and  the  case  was  com- 
mitted to  the  decision  of  the  umpire. 

November  21). — The  umpire  awarded  to  the  ciwiiers  ol  the  Jones 
the  sum  of  ninety-six  thousand  seven  hundred  and  twenty  dollars, 
and  to  sundry  persons,  for  ventures  of  goods  therein,  as  follows,  viz  : 
to  James  Gilbert,  the  master,  one  thousand  eight  hundred  and  sixty- 
three  dollars  ;  to  Ebenczer  Symonds,  the  mate,  eight  hundred  and 
forty-two  dollars ;  to  F.  Sexton,  the  supercargo,  one  thousand  two 
hundred  dollars,  amounting  in  all  to  the  sum  of  one  hundred  thousand 
sis  hundred  and  twentv-five  dollars. 

4.  Ihua  CvKUS,  Peter  C  Dumas,  uivner. 

Presented  March  14,  1854 — Heard  Aw/nstfi,  and  submitted — Disallowed. 


For  seizure  and  detention  of  this  vessel  by  the  brig-of-war  Alert, 

charge  of  being  concerned  in  the  .slave  trade. 
November  25. — Claim  disallowed.  4 


5.  Schooner  John,  Iteuben  Shapely,  owner. 

Presented  March  14,    1854 — Heard  May  10,  and  Hiibmitted — Disagreement  of  the  cominis- 

sioners — .'Xwartl   of  umpire. 

For  capture  of  the  above  vessel  by  the  British  ship-of-war  Talbot, 
March  5,  1815,  after  the  close  of  the  war,  when  peace  existed  by  the 
terras  of  the  treaty  in  the  latitude  where  she  was  seized. 

November  4, — The  commissioners  disagreed  on  the  amount  of 
damage,  and  it  was  referred  to  the  umpire. 

November  2\K — The  umpire  awarded  the  sum  of  thirteen  thoustmd 
six  hundred  and  eight  dollars  and  twenty-two  cents,  in  full  of  said 
claim,  due  January  15,  1855. 

(*».  ScHOONEii  IjKvi.v  liANK,  Joiiu's  SuUivaii,  owner. 

Presented  March  14,  1854 — Hoard  August  Ki,  and  submitted — Disallowed. 

This  vessel  was  sold  by  her  master  and  lessee  to  foreign  owners  on 
the  coast  of  Africa.  She  was  afterwards  seized  and  condemned  at  St. 
Helena  for  being  concerned  in  the  slave  trade.  Claim  was  made  here 
for  her  by  her  original  owner. 

November  25.—  Disallowed. 


CONVENTION    WITH    GREAT    BRITAIN. 


51 


allv  (le- 
niH  coin- 

e  Jones 
(lollarH, 
WH,  viz : 
id  sixty- 
[red  iiml 
uul  two 
,honsan<l 


id. 

ir  Alert, 


ho  cornmis- 

Talbot, 
cl  by  the 

noiint    of 

thousaiui 
1  of  said 


■0.1. 

\v tiers  on 
led  at  St. 
ade  here 


7.  Bkhjantine  Voi.isia^  John  IV.  Disney  and  John  Graham,  owners. 

Presented  Miircli  J4,  1H.')4— Heard  July  5,  iind  Hiihinilled — Further  papori  filed,  by  Icavo, 
July  8 — Difiigrceinont  of  the  ('(jniniiHsioniTK — Heard  before  umpire  November  27 — 
Disallowed  by  the  iiinpirb. 

For  seizure  of  the  above  in  1850,  by  the  British  steamer  Rattler, 
while  (tn  a  voyage  from  Rio  Janeiro,  on  the  charge  of  being  concerned 
in  the  slave  trade,  and  for  her  condemnation  as  having  false  papers. 

A^ovciiihcr'liy. — The  commissioners  disagreed  on  the  allowance  of  the 
claim,  and  it  was  referred  to  the  umpire. 

Deccmher  1 . — Claim  disallowed  by  the  tim])ire. 

S.  TuK  Only  Son,  Fuller  and  Delano,  owners. 

Presented  March  14,  1854 — Heard  before  the  cuiiiiniNHioiiers  and  umpire  November  13,   and 
Niibmittud — Disttgreoinent  of  the  oommisslonors — Award  of  umpire. 

For  comi)elling  the  above  vessel  to  be  entered  at  Halifax,  and  to 
pay  duties  in  1H22,  when  she  liad  put  in  there  on  her  way  to  a  market 
merely,  wliereby  she  was  compelled  to  dispose  of  her  cargo  there  at  a 
loss. 

Novemhcr  \i\. — The  conmiissioners  disagreed  on  the  allowance  of  the 
claim,  and  it  was  referred  to  the  umpire. 

Decemhcr  14. — The  u)apire  awarded  the  sum  of  one  thousand  dollars 
in  full  of  said  claim,  due  the  15th  of  January,  1855. 

9.  Ship  Amelia,  Itohert  lioherts,  owner. 

Presented  June  1,  18.')4 — Heard  June  3,  and  Huhinitted — Disallowed. 

For  capture  of  the  above  by  a  British  cruiser,  while  on  her  way  from 
Porto  Rico  to  (luadaloupe,  on  the  11th  of  February,  1815,  and -for  her 
subsequent  condemnation. 

Ocioher  Jl. — It  appearing  that  the  date  of  the  capture  of  the  above 
vessel  was  prior  to  the  ratification  of  the  treaty  of  peace  of  December, 
1814,  the  claim  was  disallowed. 

10.    John  McClihe  and  othkr.^. 

Presented  March  14,  1854 — Heord  on  question  of  jiirindictinn  Auyusit  1",  and  submitted — 

Disallowed. 

Claim  for  slaves  alleged  to  be  owned  by  citizens  of  the  United 
States  in  Florida,  while  that  Territory  belonged  to  Spain,  and  which 
escaped  from  Florida  to  Cumberland  Island,  and  were  taken  away  by 
the  British  authorities  at  the  close  of  the  war  of  1815. 


52 


ADJUSTMENT    OF  CLAIMS    UNDER    THE 


September  26. — DiHallowed  on  the  ground  of  want  of  Jiiiisdiction, 
also  of  an  adjustment  under  a  prior  convention  for  all  Hlaves  roniovod, 
holdon  under  American  iaw8. 

11.  Jamrs  YouNti. 

ProMntod,  liy  loiivo,  Juno  .1,  H.')4  -Hoard  anil  Huhmittod — Oiaallourcd. 

Claim  for  slaves  captured  on  the  high  Kcas  during  the  war  of  1812, 
taken  to  the  West  Indies,  and  there  disposed  of  by  the  Britisli  autlio- 
ffities. 

October  11. — Claim  disallowed. 

12.  Bkio  Creolk,  Edioanl  Lockett  and  others,  nivnrrs  of  slaves  on  board. 

PrMonted  March  14,  1854 — Further  papors  filed  May  23 — Heard  Juno  ,1,  and  HubniiUod — 
Further  clainiH  to  property  on  lioard  presontcd,  by  leave,  Juno  10  and  14,  1834 — DiHa- 
greement  of  the  RornniiMMionorN — Heard  Imforo  umpire  Octi)ber  19  and  Ul — Award  of 
umpire. 

Claim  for  Hborating  sluvch  on  hoard  said  vessel  ut  the  Bahamas 
islands,  which  had  been  com])('lled  to  jmt  in  thore  by  the  slaves, 
who  had  mutinied  and  obtained  control  of  the  vessel  by  killing  one  of 
the  passengers,  and  severely  wounding  the  captain,  chief  mate,  and  a 
portion  of  the  crew. 

September  2(>. — The  commissioners  disagreed  on  the  fillowance  of 
the  claim,  and  it  was  referred  to  the  umpire. 

Januarii  1). — The  umpire  awarded  to  the  several  clainuints  in  this 
case,  hereafter  mentioned,  the  sums  set  against  their  respective  names, 
amounting  in  all  to  one  hundred  and  ten  thousand  three  hundred  and 
thirty  dollars,  in  full,  to  the  loth  of  January,  1855,  viz  : 
To  Edward  Lockett  -  -  -  .<!22,2o0 

John  Hogun  -  .  .  . 

William  H.  Goodwin,  fur  self,  and  Thomas 
McCargo  _  .  _  _ 

John  Pemberton,    liquidator  of  the   Mer- 
chants' Insurance  Com 'y  of  New  Orleans 
G.  H.  Apperson  and  Sherman  Johnson 
P.  Rotchford  -  -  -  - 

John   Pemberton,   liquidator  of  the  Mer- 
chants' Insurance  Com'y  of  New  Orleans 
James  Andrews       -  -  -  - 


8,000 


23,140 


12,400  first  claim. 
20,470 

2,1  ar. 


16,000  second  claim, 
5,874 


110,330 


diction, 
Miiovod, 


i>f  1812, 
li  autlio- 


)n 


board . 


iiibiiiittod — 
1854— DiHa- 
— Award    of 

BaliamaB 
le  slavcH, 
ng  one  of 
ite,  and  a 

(wunce  of 

ts  lu  this 

e  names, 

id  red  and 


8t  claim. 


;oud  claim. 


I 
I 


^H 


# 


CONVENTION    WITH    (}REAT   HRITA1N.  68 

l:{.  B.\iuiri;  J«>n\  A.  Umiii. 

PrfHontml  Mitrrli  14,  1H54— llciird  July  15,  and  itihiiiitled — DiRallowud. 

For  tlu'  removal  of  u  sailor  from  this  vcHsel  by  a  liritihli  cruiHcr  on 
the  coast  of  Africa.  • 

Ovlohi  I-  1 1. — Tlie  ri^lit  to  outer  the  vesHel  for  such  jjurpose  was  dis- 
avowed :  ami  it  apjieariu^^,  on  the  evidence  sultuiitted,  that  the  sailor, 
who  had  some  coutroverHV  with  hi.s  captain,  left  the  vessel  ultimately 
with  the  maHter'H  consent,  tlie  claim  was  diHallowed. 

14.  Maui  A  Doi.uiuis,  IFUliain  T(tt/(/af(  ontJ  otlHr»,oioners. 

PreMMilo«l  .Marrh  14,  IHr»4 — Heiird  AiijfURt  I)  and  Soptoinbnr  'Hi,  and  submitted — Diitalluwod, 
(iM  not  beini;  within  tlio  jtirindiotion  of  tho  roinmigsiononi. 

For  proceeds  of  said  vessel  and  car>i;o,  cajjtured  by  i  Bolivian  priva- 
teer, and  brought  into  Barbadues,  where  tho  vessel  and  carf;o  were 
sold  by  the  British  colonial  authorities,  the  i)resent  claimant  oc'xn^ 
a  citizen  of  the  United  States. 

Held  not  to  be  within  the  jurisdiction  of  the  commissioners. 

15.   Biiicj  UoKiLAs,  Amos  Fmzar,  owner. 

Trcsentod  .\pril."}:2,  18.')4 — Further  papers  filed  May  13 — Heard  July  21,  and     ubmuted  — 

Award.  • 

For  seizure  and  detention  of  the  above  vessel  on  charge  of  being 
engaged  in  the  slave  trade. 

November  25. — The  commissioners  awarded  tha  sum  of  six  hundred 
dollars  in  full  of  said  claim,  due  January  15,  1855. 

1(5.  S«iiooNEU  Carolinr  Knight,  George  W.  Knight  and  others ,  moners . 

Presented  February  2,  18.'i4— Heard  July  1'2,  and  submitted — Award. 

For  capture  of  the  above  vessel  and  proceediu.;-  in  the  sale  of  the 
same  at  Prince  Edward's  Island,  in  1852. 

October  10. — The  commissioners  awarded  the  sum  of  one  thousand 
eight  hundred  and  eighty-seven  dollars  and  .sixty  cents,  in  full  of  said 
claim,  due  the  15th  of  January,  1855. 

17.  Tjii;  VEriSKi^  Tigris  and  Seamew,  3[essr,s.  Brookhonse  cC  Hunt,  owners. 

Presented   Marcli  14,  18.")4 — Submitted  on  the   papers — Disagreement  of  commissioners  as 
to  amount  of  damages — Award  of  umpire. 

Damage  for  seizure  of  the  above  vessels^,  in  1840,  by  the  British 
cruiser  Water  Witch,  on  the  coast  of  Africa,  and  sending  them  to  Ame- 
rica for  trial  for  violation  of  laws  of  the  United  States. 


54 


ADJUSTMENT   OF  CLAIMS    UNDER   THE 


October  28. — The  commissioners  disagreed  on  the  amount  of  damage 
to  be  awarded,  and  the  case  was  referred  and  submitted  on  the  papers 
to  the  decision  of  the  umpire. 

December  14. — The  umpire  awarded  twenty-four  thousand  six  <lol- 
lars  and  forty  cents,  in  full  of  said  claim,  due  the  15th  of  January, 
1855. 

18.  Schooner  Pallas,  Edward  Had'dl  and  others,  owners. 

Presented  March  14,  1854 — Heard  July  15  and  August  l,and  submitted — Disagreement  of 
the  commisBioncrs — Disallowed  by  the  umpire. 

For  illegal  seizure  of  the  same  oif  Chittican  bay,  and  its  detention 
during  the  fishing  season. 

October  28. — The  commissioners  disagreed  on  the  allowance  of  tlio 
claim,  and  it  was  referred  to  the  umpire. 

Jamiary  15. — Claim  disallowed  by  the  imipire  for  want  of  sufficient 
evidence. 

19.  ScifocxKR  Argus,  Doughty,  maafer. 

Presented  March  14,  1854— Heard  July  15  and  August  1,  and  submitted— Hisagreonient  of 
commissioners — Heard  before  umpire  October  11,  and  .submitted — Award  of  umpire. 

For  seizure  of  the  above  vessel,  on  St.  Ann's  bank,  by  the  British 
revenue  cruiser  Sylph,  and  lier  removal  to  Sydney,  where  she  was 
subset^uently  sold. 

September  20. — The  cominissionors  disagreed  in  said  case,  and  the 
same  was  submitted  to  the  umpire. 

December  2;}.— The  umpire  awarded  the  sum  of  two  thousand  dol- 
lars, in  full  oi'said  claim,  due  the  15th  of  January,  1855. 

20.  The  Ji-T,ir>;  wn  Edward,  Charles  Tymj,  oivner. 

Presented  March  14,  1854 — Subiniltcd  on  tiie  papers- Dismissed. 

Vessel  seized  by  British  cruiser  and  taken  to  Bremen. 
No  evidence  submitted  ;  claim  dismissed. 

21.  Schooner  Hero,  James  B.  McCunncJ. 

Presented  March  14,  1854— Submitted  on  the  paper!*— Disallowed. 

For  seizure  and  detention  of  the  above  vessel  l)y  lier  Majesty's  brig 
Lynx,  off  the  coast  of  Africa. 
November  25.— Claim  disallowed. 


i 

i 


ii# 


CONVENTION    WITH   GREAT   BRITAIN. 


55 


iamage 
;  papers 

six  (lol- 
Eiiiuary, 

roemonl  of 

otention 
e  of  the 
ufficient 


reemcnt  of 
impire. 

;  British 
she  was 

and  the 

and  dol- 


ly's brig 


22.  BiiKi  Charlotte,  Hart,  Sands  and  others,  onmers. 

Prosenteil  MiTch  14,  1854 — Heard  July  ijl,  and  submitted — Disallowed. 

For  seizure,  under. legal  process,  by  a  British  claimant,  on  the  coast 
of  Ireland,  and  her  subsequent  release  by  the  court  of  admiralty  with- 
out costs  for  lier  detention. 

Claim  disallowixl,  on  ground  of  its  being  a  controversy  between 
private  individuals,  settled  by  a  competent  court  within  whose  juris- 
diction the  property  was. 

23.   Hrnry  H.  Sciiieffelin. 

Prosontcd,  by  leave,  June  10 — Heard  August  17  and  October  4,  on  (juestion  of  jurisdiction, 
and  submitted — Disallowed  on  the  ground  of  want  of  jurisdiction. 

Case  pending  in  admiralty  court  for  seizure  of  a  vessel  prior  to  the 
war  of  1812,  on  which  restitution  was  ordered  ;  but,  during  the  war, 
the  property  was  confiscated. 

Claim  is  now  math;  for  damage  in  refusing  1o  proceed  with  suit  in 
court  after  peace. 

Claim  disallowed  on  the  ground  of  want  of  jurisdiction. 

24.  SciiooxKR  Wasuinotox. 

['resented  Marcii  14,  1854 — Submitted  on  the  papers — Dinallowed. 

For  capture  and  condemnation  of  the  above  vessel,  at  Halifax,  by 
the  British  authorities,  in  1818. 

Jamiarij  13,  1855. — Evidence  incomplete  ;  disallowed. 

25.  TiiK  JoriEi'ii  CowPERTUWAiT,  WilUaui  J.  Smith  and  others,  owners. 

Presented  Marcli  14,  1854 — Heard  July  21,  and  submitted — Dismissed. 

For  search  and  detention  of  the  above  vessel  by  the  governor  of  Cape 
Coast  Castle. 

No  evidence  submitted  ;  dismissed. 

26.  Schooner  Washington. 

Presented  Marcii  14,  1?*54 — Heard  July  15  and  August  1,  and  submitted — Disagreement  of 
rommiswionera  as  to  construction  of  fishery  treaty — Heard  liefore  umpire  October  11 — 
Award  of  umpire. 

For  the  capture  and  condemnation  of  tlie  above  vessel,  at  Halifax, 
in  184.S,  by  the  colonial  authorities,  for  taking  fish  in  the  bay  of  Fundy 
when  more  than  three  miles  from  the  shore. 


56 


ADJUSTMENT  OP   CLAIMS  UNDER   THE 


September  26.— The  commissioners  disagreed  on  the  construction  of 
the  treaty  of  1818  as  to  fisheries  applicable  to  this  case,  and  the  same 
was  submitted  to  the  umpire. 

December  23. — The  umpire  awarded  the  sum  of  three  thousand  dol- 
lars^ in  full  of  said  claim,  due  the  15th  of  January,  1855. 

2T.  Schooner  Dirixtoh. 

Presented  Marcli  14,  1854— Heard  July  1.")  and  August  1,  and  submitted— Disagrcenifnt  of 
commissioners  as  to  construction  of  fishery  treaty — Heard  before  the  umpire  Ortober  1 1— 
Disallowed  by  the  umpire. 

For  capture  of  the  above  vessel,  iu  1840,  by  the  IJritish  armed  ves- 
sel "John  and  Louisa  Wallis." 

September  26. — The  commissioners  disagreed  on  the  construction  of 
the  treaty  of  1818  as  to  fisheries  applicable  to  this  case,  and  the  same 
was  submitted  to  the  umpire. 

January  13. — Claim  disallowed  by  the  umpire  for  want  of  sufficient 
evidence. 

28.  George  W.  Atwood. 


Presented  March  14,  1854— Submitted  on  the  papers — Disallowed. 

The  claimant  chartered  a  British  vessel  to  take  passengers  and 
freight  from  England  to  California.  Controversies  having  arisen  be- 
tween him  and  the  captain  and  passengers,  Atwood  appealed  for  aid 
to  the  British  minister  at  Rio.  After  various  difficulties,  the  matters 
in  controversy  were  there  settled  by  arbitrators  mutually  appointed. 

Claim  disallowed. 

29.  \Vn.LL\M  Cook  and  others. 

Presented  November  28,  1853 — Exception  taken  as  to  jurisdiction  of  the  commissioners  De- 
cember l.**,  ISi).? — Hem  '  on  same  June  14,  1854,  and  submitted — Dismissed. 

Claim  for  the  proceeds  of  the  personal  ])roperty  and  oftects  of  Mrs. 
Frances  Mary  Shard,  deceased,  of  whom  tlio  claimants  allege  them- 
selves to  be  the  legal  heirs,  and  that  the  proceeds  of  her  property  have 
gone  into  the  treasury  of  her  Majesty's  government. 

July  23. — The  commissioners  in  this  case  are  of  opinion  that  the 
claim  is  not  included  within  the  terms  of  the  convention,  and  it  is 
therefore  dismisged  on  the  ground  of  want  of  jurisdiction. 


4 


CONVENTION    WITH    GREAT   BRITAIN. 


5T 


iction  of 
ho  same 

and  (lol- 


rreement  <>( 
rtober  11 — 


iiied  ves- 

uction  of 
the  same 

sufficient 


gers  and 
irisen  be- 
d  for  aid 
;  matters 
iinted. 


isioncrs  De- 
sed. 

8  of  Mrs. 
ge  them- 
erty  have 

I  that  the 
and  it  is 


;{().   IJuKi  HNTKKi'ur/E,  Josvp/i  ll\  Ncal  and  olherfi,  ownem  of  slaves  on 

hoard. 

Presented  Miirdi  14,  18.')\— riiillicr  papors  lijod  June  19 — Heard  May  23  and  24,  and  sub- 
mitted— Disagrooniont  of  till'  (•oiuinissioners — Heart!  before  umpire  October  19  and  21 — 
Award  of  umpire. 

Chiim  fur  dauiai^o  in  liberating  sbivos  on  board  of  said  vessel  under 
the  laws  of  15onnuda,  when  driven  into  harbor  in  that  island  by  stress 
of  weather. 

Septcmhvr  iid. — 'Ihe  commissioners  disagreed  on  the  allowance  of 
the  claim,  and  it  was  referred  to  the  umpire. 

December  2'.). — The  umpire  awarded  to  tlie  claimants  in  this  case 
the  following  amounts.  To  the  Augusta  Insurance  Banking  Com- 
pany, the  sum  of  sixteen  thousand  dollars;  and  to  the  Charleston 
Marine  Insurance  Company,  the  sum  of  thirty-three  thousand  dollars, 
due  the  15th  of  January,  1855. 

31.  8cuooNER  Heumosa,  New  Orleans  Insurance  Company  and  others, 
underwriters  and  owners  of  slaves  on  board. 

Presented  March  14,  1854— Further  papers  filed  Juno  19— Heard  May  23,  24,  and  26,  and 
submitted — Disagreement  of  tlio  commissionera — Heard  before  umpire  October  19  and 
21 — Award  of  umpire. 

Claim  for  damage  in  liberating  slaves  forced  on  the  Bahamas  by 
stress  of  weather. 

September  26. — The  commissioners  disagreed  on  the  allowance  of 
the  claim,  and  it  was  referred  to  the  umpire. 

Januarij  11. — The  umpire  awarded  to  the  Louisiana  State  Marine 
and  Fire  Insurance  Company,  eight  thousand  dollars ;  aud  the  New 
Orleans  Insurance  Company,  eight  thousand  dollars;  in  full  of  their 
claims  in  said  case  to  January  15,  1855. 

32.  The  Bhookllve. 

Presented  June  9,  1854— Further  papers  tiled   .Fune  19— Heard  June  29,  and  submitted— 

Disallowed. 

For  damage  in  reclaiming  from  said  vessel,  in  British  waters,  a 
deserter  from  a  British  ship  of  war,  who  had  been  received  and  was 
.secreted  on  board  the  Brookline. 

October  \\.     Claim  disalloweil. 


58 


ADJUSTMENT   OP  CLAIMS   UNDER  THE 


I 


:>3.  Brio  Evelina. 

ProBontod  March  14,  1854— Heard  October  fi,  and  submitted— Disallowed. 

For  damage  alleged  to  be  caused  by  her  Majesty's  ship-of-war  Win- 
chester running  foul  of  the  above  vessel  in  the  English  cluinnel,  in 
the  year  1833. 

January  8. — Claim  dis  illowed. 

34    Brio  Lawrencij,  Edicard  Yorke  and  others,  owners. 

Presented  March  14,  1854 — Heard  September  25,  ond  Octubcr  6,  and  November  16,  before 
the  umpire,  and  submitted — Disagreement  of  the  commissioners — Disallowed  by  the 
umpire. 

Seized  at  Sierra  Leont',  in  1848,  and  condemned  on  the  charge  of 
being  concerned  in  the  slave  trade. 

November  25. — The  commissioners  disagreed  on  the  allowance  of 
the  claim,  and  it  was  referred  to  the  umpire. 

January  13,  1855. — Claim  disallowed  by  the  umpire. 

35.  DiTiES   ON  WooiiEX  Goods,  Charles  Barry.    WilUam  Frost,  and 

others,  agents. 

Presented  March  14,  1854,  May  23,  and  June  15— Memorial  submitted   Juno  I'J — Heard 
August  1,  October  25,  December  11  and  13 — Withdrawn. 

Claims  for  return  of  duties  levied  on  woolen  goods  by  the  British 
government  beyond  those  paid  by  citizens  of  other  nations,  contrary 
to  treaty  between  the  United  States  and  Great  Britain^  of  1815. 

January  13,  1855. --The  agent  for  tlie  said  claims,  Charles  Barry, 
addressed  a  letter  to  the  commissioners,  informing  them  that,  having 
deemed  it  advisable  for  the  pai'ties  to  adjust  the  same  without  recourse 
to  the  adjudication  of  the  board,  he  liad  effected  a  settlement  with  the 
government,  and  desired  to  withdraw  the  claims. 

Claims  withdrawn. 

36.  The  Cicero. 

Presented  Marcli  14,  1854 — Dismissed. 

For  seizure  and  detention  for  .alleged  violation  of  revenue  law.s. 
July  21. — Not  sustained.     Dismissed. 

37.  The  Jibilee. 

Presented  March  14,  1854 — Dismissed. 

Claim  for  salvage.     No  evidence  submitted.     Claim  dismissed. 


d. 

ar  Wiii- 
mnel,  in 


r  16|  before 
'cd   by  the 


iharge  of 


tvance  of 


•ost,  and 

I'J— Heard 

!  British 

contrary 

15. 

s  Barry, 

,  having 

recourse 

kvith  the 


CONVENTION   WITH   GREAT   BRITAIN. 

38.  The  Robert. 

Presented  March  14,  1854 — DiHmissed. 

Not  sustained.     Dismissed. 

:59.  TiikKlvira. 

Presented  March  14,  1854— Dismissed. 

No  evidence  submitted.     Dismissed. 

40.    ThK  OlIVR  BllAN'CK. 
Presented  March  14,  1854 — Dismissed. 

No  evidence  submitted.     Dismissed. 


m 


January  13,  1855. 

The  foregoing  docket  contains  a  correct  report  of  awards  and  judg- 
ments made  on  claims  of  citizens  of  tlie  United  States  against  the 
British  government,  after  full  hearing  and  examination  thereof;  and 
we  iiereby  place  our  signatures  to  tlie  same,  to  be  applied  thereto  in 
the  same  manner  and  as  fully  as  if  severally  affixed  to  each  of  said 
awards  and  judgments. 

The  awards  of  moneys  therein  made  are  to  l)o  paid  by  the  British 
government  to  the  government  of  the  United  States  for  the  benefit  of 
the  several  claimants,  their  attorneys,  legal  representatives,  or  assigns, 
and  said  awards  are  to  be  regarded  as  bearing  date  from  the  13th  of 
January,  1855. 

EDMUND  HORNBY, 

British  Commissioner, 


§ 


N.  G.  UPHAM, 
United  States  Commissioner 


ws. 


led. 


60 


ADJUSTMENT   OF  CLAIMS  UNDER   THE 


CLAIMS  OF  BRITISH  SUBJECTS  UPON  THE  GOVERNMENT  OF  THE  UNITED 
STATES,  WITH  THE  JUDGMENTS  AND  AWARDS  THEREON. 


I .  William  Mc({linchy. 

Presented  December  3,  1853— Heard  April  5,  1854,  and  submitted— Claim  dismissed. 

For  the  seizure  and  detection  of  paj)er.s  and  personal  property  not 
subject  to  duties,  by  United  States  revenue  officers,  on  the  river  St. 
John's,  in  the  year  1845. 

April  5. — Evidence  having  been  submitted  of  the  return  and  ac- 
ceptance of  the  articles  seized,  the  claim  was  dismissed. 

2.  Thomas  Rider, 

Presented  January  27,  1854 — Heard  February  '21,  and  submitted — Award. 

For  losses  sustained  in  consequence  of  an  arrest  and  detention  in 
custody  by  the  military  authorities  of  Matamoras,  during  a  period  of 
five  and  one  half  months,  in  the  year  1846. 

The  commissioners  awarded  the  sum  of  six  hundred  and  twenty-five 
dollars,  in  full  of  said  claim,  due  January  15,  1855. 

3.  TiiE  Joseph  Albino,  WiUiam  Allen,  owner. 

Presented  December  G,  IS.'iS — Heard  and  submitted — Disallowed. 

For  injury  and  detention  at  San  Francisco,  on  charge  of  violating 
the  revenue  laws  of  the  United  States  in  respect  to  foreign  vessels. 
Claim  disallowed. 

4.  The  Francics  and  Ei.iza,  Christopher  Jiichardson,  owner. 

Presented  December  30,  1853 — Heard  March  6  and  15,  and  submitted — Reopened  for  the 
admission  of  further  testimony,  and  again  submitted  May  13, 1854 — Disagreement  of  com- 
missioners on  the  amount  of  damages — Submitted  to  the  umpire — Award  of  umpire. 

For  the  seizure  of  this  vessel  at  New  Orleans,  in  181U,  and  sale  under 
a  judgment  of  the  United  States  district  court,  which  was  subsequently 
eversed  by  a  decision  of  the  Supreme  Court  of  the  United  States. 


'  ,1'         •^'^i 


CX>NVENTION   WITH   GREAT   BRITAIN. 


61 


:  UNITED 

>N. 


stnissed . 

)erty  not 
river  St. 

and  ac- 


rd. 

ention  in 
period  of 

cnty-five 


violating 
}ssels. 


mer. 

ined  for  the 
lent  of  com- 
npirc. 

lie  under 
equently 
tatcH. 


October  28. — The  commissioners  disagreed  on  the  amount  of  damages 
to  be  awarded,  and  the  case  was  referred  to  the  umpire,  and  was  sub- 
mitted by  the  agents  for  his  decision  on  the  papers. 

November  29 — The  umpire  awarded  the  sum  of  thirty-four  ihousand 
two  hundred  and  twenty-seven  dollars,  in  full  of  said  claim,  duo 
January  1'),  1855.  » 

5.  Ship  Albion,  John  Lidgell,  owner. 

Presented   January  20,  18.")4 — Heard  April  3  and  May  13,  and  submitted — Disagroenieiit  of 

tlic  commissioners — Award  of  umpire. 

For  seizure  of  the  above  vessel  by  the  United  States  officers  of  reveiuio 
for  non-payment  of  customs  duties  ;  for  cutting  timber  in  Oregon  ; 
and  for  trading  with  the  natives  in  violation  of  acts  of  Congress. 

October  28. — The  commissioners  disagreed  on  the  allowance  of  the 
claim,  and  it  was  referred  to  tlic  umpire. 

December  1. — Tlie  umpire  awarded  the  sum  of  twenty  thousand  dol- 
lars in  full  of  said  claim,  due  January  15,  1855. 

♦*..    MtSSRS.    liOltACK    &:   Co. 
Piesentcd   Duceinhur  G,  18J3 — .Siiiimitted — Di(«aIlowed. 

For  the  seizure  of  logwood,  at  Tabasco,  by  American  seamen  during 
the  Mexican  war. 
(Maim  disallowed. 

7.  Hudson-  Bay  Co.mi'Anv. 

Presented  MurcJi  13,  1^54 — Withdrawn. 

For  exemption  from  taxes  on  live  stock  in  Oregon,  and  rei>ayment 
of  duties  collected  thereon. 
July 'IS). — ('laim  withdrawn. 

8.  Hihsox  Bay  Company. 

Presented  Marcli  13,   1H54— Heard  July  29,  and  submitted— Disagreement  of  the  commis- 
sioners—Heard before  the  umpire  November  18 — Award  of  umpire. 

For  seizure  of  the  steamer  Beaver,  in  Dcceml»er,  1851,  in  Oregon, 
on  the  charge  of  having  violated  the  United  States  revenue  laws. 

October  28. — The  commissioners  disagree<l  on  the  allowance  of  the 
claim,  and  it  was  referred  to  the  umpire. 

November  29. — The  umpire  awarded  the  sum  of  one  thousand  dol- 
lars in  full  of  said  claim,  due  the  15th  of  January,  1855. 


62 


ADJUSTMENT  OF  CLAIMS   UNDER   THE 


9.  Hudson  Bay  Company. 

Presented  March  13,  1854— Withdrawn. 

For  loss  occasioned  I>y  the  seizure  of  tlieir  scliooner  Oadbon)'. 
July  20. — Claim  withdrawn. 

10.  Hudson  Bay  Company. 

Presented  Marrh  13,  1854— Heard  July  :J!),  and  submitted — Disallowed. 

For  obstruction,  by  United  States  revenue  officers,  of  rights  of  trans- 
portation by  their  vessel,  the  Prince  of  Wales,  under  the  treaty  of 
1846. 

Octohr  11. — Claim  disallowed. 

11.  Maurice  Evans  <fe  Co, 

Presented  March  13,  1854 — Heard  July  1,  and  Bubiiiitted — Disallowed. 

For  return  of  duties  assessed  by  United  States  revenue  officers,  in 
over  valuation  of  wine.s  and  porter  imported  into  New  York  city  dur- 
ing the  years  18r»0  and  1851. 

Claim  disallowed. 

12.    JoSKPH  "WlLS(tN. 

Presented  March   13,   1H54 — Heard   April  8,  and  submitted — Further  affidavits  filed   July 

13 — Disallowed 

For  his  arrest  and  detention  in  Michigan  on  charge  of  exercising  his 
authority  as  British  land  officer  on  an  island  alleged  t(»  be  within  the 
limits  of  that  State,  afterwards  found  to  be  within  Britisli  juri.sdic- 
tion. 

Claim  disalhnvcd. 

1!^.     1'lATT    AM»    DlNCA.V. 

Presented   jMarcli    15.    1854— Heard  July   1,  and  submitted— Re-openrd   Novcinbor   1.  and 

again  sulimilted — Disallowed 

For  return  of  moneys  alleged  to  be  illegally  obtained  us  an  adjust- 
ment of  suits  brought  against  them  by  the  United  States  collector  at 
New  York  city  in  1840.  on  the  charge  of  liaviug  entered  goods  with 
false  invoices. 

November  13. — Claim  disallowed,  * 


CONVENTION    WITH    GREAT   BRITAIN. 


63 


•  >  . 


of  trans- 
treaty  of 


[ficers,  in 
citv  dur- 


filcd   July 

jisingliis 
ithin  the 
jiirisdic- 


ihcr   1.  and 

11  iuljust- 
Icotor  at 
ods  with 


14.  The  Execi'toiw  of  James  Holfoud  and  other  daimants. 

Presented  Miircli  15,  1854 — Protent  filed  as  to  tlio  jurisdiction  of  tlio  conunissioners,  July 
18 — Heard  July  18 — Disagreement  as  to  jurisdiction,  hoard  before  the  umpire  July  18 — 
Disallowed  by  the  umpire. 

For  money  due  on  bonds  issued  by  Texas  prior  to  its  admission  into 
the  Union,  for  payment  of  which  bonds  tlie  Texan  duties  were 
pledged,  and  were  al'terwards  transferred  to  the  United  States. 

The  commissioners  disagreed  on  the  question  of  jurisdiction  o\  said 
CHNe,  and  it  was  referred  to  the  umpire. 

Noveniher  2i>. — Chiini  disallowed  by  the  umpire. 

IT).   riiiLii-  Dawson    and  others. 

Prew.'nlnd  Juno  7,  1854 — Protest  filed  agaiu-st  the  jurisdiction  of  the  coiumiHsionnrH  July  28 — 
Hoaril  July  28,  and  Huhmilted — Disaffreenicnt  as  to  jurisdictiim— Hoard  in-forp  the  um- 
pire November  1 1 — Disallowed  by  the  umpire. 

For  money  due  on  bonds  issued  by  Texas  jjrior  to  its  admission 
into  the  United  States. 

The  commissioners  disagreed  on  the  (juestion  of  Jurisdiction,  and 
the  case  wa.s  referred  to  the  umpire. 

November  2*J. — Claim  disallowed  by  the  umpire. 

16.  Tub  Lord  Nelson,  James  Crooh,   oioner. 

Presented  March  6,  1854 — Heard  March  23,  on  question  of  jurisdiction — Further  argument 
submitted ,  by  leave,  May  23,  1854 — Disagreement  as  to  jurisdiction — Heard  before  the 
umpire  December  9 — Disallowed  by  the  umpire. 

For  proceeds  of  a  judgment  in  the  court  of  admiralty  in  1818, 
which  proceeds  were  not  received  on  account  ot  the  clerk  of  the  court 
proving  a  defaulter,  said  judgment  being  founded  on  a  suit  for  seizure 
of  a  vessel  made  prior  to  1855. 

The  commissioners  disagreed  on  the  question  of  jurisdiction  of  the 
case,  and  it  was  referred  to  the  umpire. 

Becemhcr  14. — Claim  disallowed  by  the  umpire. 

17.  lAfrud  T.Wood. 

Presented  Marcii  15,  1854 — Heard  April  8,  and  submitted — Disallowed. 

For  seizure  in  New  Brunswick  and  removal  to  Maine,   for   offencea 
aid  to  have  been  committed  in  that  State. 
Claim  disallowed. 


ADJUSTMENT    OF  CLAIMS   UNDER    TUF3 


.*» 


18.  Hamlel  C.   Johnston. 

ProHontcd  March  13,  1854— Hoard  April  II,  and  isubiiiittod— Disillowiil. 

For  arrest  luul  prosecution   at    New   Vork,   on  the  charge  of  vio 
iating  the  emigrant  passenger  act. 
Claim  'lisallowed. 

11).  Thr  Union,  Jiobert  Unll,  master. 

PreHenlcd  March  1.3,  18.')4— Heard  April  11,  and  subinittod— Disallowed. 

For  additional  i)ayment  of  damage  on  account  of  the  capture  of 
this  vessel  by  the  United  States  sloop-of-war  Peacock,  after  ))cace 
had  taken  eflect.  where  the  capture  was  made. 

Claim  disallowed. 

20.    (iHEAT   WesTEKN   StBAMSHIP   CoMl'ANY. 

PrcHcntcd  Martii  l.'l,  l.s.")4 — llcaid  July  .5,  and  sulunittod — Disagreement  of  coinnii«»ioner* 
on  the  amount  of  damage — Heard  heforo  tlie  uiiipiro  December  '.) — Award  of  umpire. 

For  return  of  duties  on  coal  entered  and  stored  at  Boston  and  con- 
sumed on  outward  hound  voyages  of  their  steamers,  for  which  tliey 
claim  that  tliey  are  entitled  to  drawback. 

Deccinher  1. — The  commissioners  disagr(Hnl  as  to  the  amount  to  he 
^allowed  and  tlu'  same  was  referred  to  the  umpire. 

December  I  [. — The  um])lre  awarded  the  sum  of  thirteen  thou-sand 
dive  liundrt'd  dollars,  due  the  IGth  of  January,  1855. 

21.  Henkaok  W.   Deiunq  and  others. 

iPrrMiitcd  Marrh  l.'J,  ls,">4— March  21  aiul  .May   :i6— Heard  June  :>1    and  submitted— Disii- 
agrecnient  as  to  jurisdiction — Heard  before  the  umpire — Disallowed  by    the  umpire. 

For  sums  due  on  bonds  issued  bv  the  territorial  government  of 
Florida. 

Novemher  \',\. — The  commissioners  disagreed  on  the  (|uestion  of 
jurisdiction,  and  also  tm  the  merits  of  the  case,  and  it  was  referred 
to  the  timi)ire. 

Ihrvmher  14. — Chiim  disallowed  by  the  umpire. 

'I'l.  The  .)  a.mks  Mitciii;!.!-,  Francis  A-shlen  and  others,  owners. 

Trcscnted  March  13,  18r)4 — Heard  boCoro  tlie  conimissioncrs  and  umpire  November  '20,  and 
submitted — Disagreement  of  the  commissioners  on  the  amount  of  damage — Award  of 
umpire. 

Claim  for  damage  in  removal  of  the  above  ves.sel  to  Key  West  in 
Florida  for  trial  as  to  salvage,  and  sale  there  of  vessel  and  cargo. 


CONVENTION    WITH   GREAT   BRITAIN. 


G6 


I'd. 

*^o  of  vio- 


yed. 

capture  of 
ftor   ])ca('0 


cuiiiiiiiHiiioner^ 
of  umpire. 

II   andcon- 
whicli  tlioy 

ount  to  htj 

tliouMiind 


Limittecl — Disii- 
,lie  umpire. 

jrnmcnt   of 

|ue.stitm  of 
as  referred 


vcmber  "20,  ami 
ge — Awuni    of 

[ey  West  in 
carso. 


The  commissioners  disagreed  as  to  the  amount  of  damage  to  be 
allowed,  and  the  same  was  referred  to  the  umpire. 

Decemln'r\. — The  umpire  awarded  the  sum  of  twenty  thousand  dol- 
lars, due  the  15th  of  January,  1855. 

23.  Th»  Young  Dixon,  Samuel  Moats,  owner. 

ProBontcd  Marcli  13,  18.'>4 — Submitted  on  the  papers  October  18 — Diiallowed. 

For  excess  charged  on  tonnage  duties  of  the  above  vessel  by  custom- 
house officers  at  Philadelphia  on  her  arrival  from  Honduras. 
Claim  disallowed. 

24.  Francis  Watson  and  otiii-  s. 

Presented  January  7,  lB.'i4 — Heard  May  26,  and  submitted — Disallowed. 

For  lands  granted  them  in  the  Territory  of  New  Brunswick,  but 
by  adjustment  and  location  of  boundary  line  now  included  in  the  State 
of  Maine. 

Claim  disallowed. 

25.  The  Irene,  lUddell  Robson,  owner. 

Presented  March  13,  1854 — Dismissed. 

For  the  seizure  and  detention  of  this  vessel  for  violation  of  the 
emigrant  passenger  act. 
October  18. — Dismissed. 

26.  Miller  &  Mackintosh. 

Presented  March  13,  1854 — Heard  December  9,  and  submitted — Award. 

For  damage  from  seizure  of  wines  at  San  Francisco,  in  1849,  by  the 
United  States  revenue  officers. 

December  14. — The  commissioners  awarded  the  sum  of  six  thousand 
dollars,  in  full  of  said  claim,  due  the  15th  of  January,  1855. 

27.  Brio  Lady  Shaw  Stewart,  George  Bachham,  otvner. 

Presented  December  3,1854 — Heard  May  13  and  15,  and  submitted — Disagreement  of  com- 
missioners on  tlic  amount  of  damage — Case  submitted  to  the  umpire  on  the  papers — 
Award  of  umpire. 

For  the  alleged  illegal  seizure  and  sale  of  the  above  vessel  at  San 
Francisco  by  the  United  States  authorities. 

October  28. — The  commissioners  disagreed  on  the  amount  of  damage 
to  be  awarded,  and  the  claim  was  referred  to  the  umpire,  and  was  sub- 
mitted by  the  agents  to  his  decision  on  the  papers. 

5 


66 


ADJUSTMENT   OP  CLAIMS   UNDER  THB 


''  Kovemher  29.— The  umpire  awarded  tlie  sum  of  six  thou.rnn  ;  .  ;,liar«, 
in  full  of  said  claim,  due  the  15th  of  January,  1855. 

28.  Godfrey,  Pattison  &  (h. 

Preientcd  March   13,  18.')4— Furllior  memorial  preHtntid  Uy  leave  June  15,  1854— Heard 

Juno  2'J,  nnd  nubmittcd — Award. 

For  the  repayment  of  duties  levied  on  tlieir  goods  beyond  those  paid 
by  citizens  of  other  nations,  contrary  to  the  treaty  of  1815. 

January  13,  1855. — ThecomnnHsioners  award  the  sum  of  sixty-one 
thousand  six  hundred  and  eighty-nine  dollars  and  fifty-four  cents,  in 
full  of  said  claim  to  January  15,  1855. 

29.  Messrs.  Baker  &  Co. 

Presented  March  13,  1854— DismiBsed. 

For  expulsion  from  Tani])ico  by  the  forces  of  the  United  States. 
Claim  dismissed. 

30.  Messrs.  McCalmont  &  Greaves. 

Presented  December  30,  18.')3 — Heard  April  22  nnd  25, 1854,  nnd  subniittod — Disagreomont 
of  the  commisHioners — Heard  before  the  umpire  Decrmber  7 — Award  of  umpire. 

For  return  of  duties  levied  at  Vera  Cruz  during  the  Mexican  war, 
through  change  and  alleged  mistake  iti  the  American  tariff. 

December  1. — The  commissioners  disagreed  on  the  allowance  of  the 
claim,  and  it  was  referred  to  the  umpire. 

January  8. — The  umi)ire  awarded  the  sum  of  eleven  thousand  seven 
hundred  and  thirty-three  dollars  and  fitty-eight  cents,  due  January 
15,  1855. 

31.  Messrs.  Calmoxt  &  Co. 

Presented  December  7,1853 — Heard  and  submitted — Disallowed — Further  claim  for  return 
of  duties  paid  on  the  above — Presented  December  3,  1853 — Heard  May  18,  1854 — Disa- 
greement of  the  commissioners — Heard  before  umpire  December  7,  1854 — Disallowed  by 
^he  umpire. 

For  the  seizure  of  goods  belonging  to  them  by  the  Mexicans,  while 
under  convoy  of  the  United  States  forces. 

December  7. — Claim  for  seizure  disallowed. 

A  further  claim  was  then  made  for  return  of  duties  paid  on  the 
above  goods. 

December  1 . — The  commissioners  disagreed  on  the  allowance  of  the 
same,  and  it  was  referred  to  the  umpire. 

December*  ' . — Claim  for  the  return  of  duties  disallowed  by  the  um- 
pire. 


f 


i 


CONVENTION  WITU   GREAT  BRITAIN. 


67 


ul  <niar«, 


1854— Heard 
tlioso  paid 

f  sixty-one 
ir  cents,  in 


States. 


L  S3 


-Disagrcomont 
f  umpire. 

exicau  war, 

ance  of  the 

iisand  seven 
ue  January 


claim  for  return 
18,  1854— Disa- 
-Disallowed  by 

icans,  while 


aid  on  the 

■trance  of  the 

hy  the  um- 


i 


32.    MlISSRH.  COTRSWORTII,  POWKLL  &  PuYOU. 

Prcientod  March   13,  1854— Ilonrd  before  the  commiMionori  and  umpire  November  90— 

Diioliowcd. 

For  lands  granted  them  in  Texas  while  under  the  government  of 
Mexico. 
November  25. — Claim  disallowed. 

33.  Mes^^is.  T.  &;  B.  Laurent. 

Prniientod  January  16,  1854— Question  of  jurixdiction  railed  April  5,  hoard,  and  iuH- 
inittod — Disagreement  of  tlie  commisnioncrs — Hoard  before  the  umpire  October  5 — 
Diaailowed  by  the  umpire. 

For  the  seizure  and  confiscation,  hy  General  Scott,  of  a  deht  alleged 
to  be  due  from  the  Messrs.  Laurents  to  the  Mexican  government,  on  a 
contract  for  the  purchase  of  real  estate,  which  contract  was  denied  by 
the  government,  and  of  which  estate  the  Messrs.  Laurents  were  dw»- 
possessed  by  judgment  of  the  Mexican  courts. 

September  26. — The  commissioners,  being  unable  to  agree,  severally 
delivered  their  opinions,  wliich  were  placed  on  file,  and  the  case  wa« 
committed  to  the  decision  of  the  umpire. 

December  20. — Claim  disallowed  by  the  umpire. 

34.   Brioantine  Confidence. 

Presented  February  17,  1854 — Heard  June  10,  ond  submitted — Further  papers  filed  by  leave, 
Juno  19  and  October  6 — Award  of  umpire. 

Claim  for  the  running  down  the  above  vessel  by  the  United  States 
frigate  Constitution,  in  the  straits  of  Gibraltar,  December  1,  1850. 

Referred  by  commissioners  to  the  umpire. 

January  13. — The  umpire  awarded  the  sum  of  two  thousand  and 
fifty-five  pounds,  or  nine  thousand  nine  hundred  and  forty-six  dollar«i 
and  twenty  cents,  in  full  of  said  claim,  due  January  15,  1855, 

35.  Samuel  Bradbury. 

Presented  March  15,  1854 — Heard  January  6,  1855,  and  submitted— Disallowed. 

For  return  of  moneys  alleged  to  be  illegally  obtained  by  the  col- 
lector of  customs  of  New  York,  in  compromise  of  a  suit  brought  on 
a  charge  of  having  entered  goods  with  false  invoices. 

January  13. — Claim  disallowed. 


I 


ft' 


III '   I 


68 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


36.  Hudson  Bay  Company. 

Presented  March  13,  1854— Heard  July  29,  and  submitted— Award. 

For  drawback  of  duties  on  goods  paid  at  Astoria  in  1852,  and  re-ex- 
ported to  Fort  Vancouver. 

October  11. — The  commissioners  award  the  sum  of  fifteen  hundred 
and  twenty-three  dollars  and  sixty-eight  cents,  in  full  of  said  claim, 
due  the  15th  of  January,  1855. 

37.  Hudson  Bay  Company. 

Presented  March  13,  1854 — Heard  July  29,  and  submitted — Award. 

For  supplies  furnished  volunteers  raised  in  Oregon,  on  breaking 
out  of  hostilities  with  the  Indians,  and  expenditures  incurred  in  res- 
cue of  captives  from  them  prior  to  the  organization  of  the  territorial 
government. 

December  1. — The  commissioners  award  the  sum  of  three  thousand 
one  hundred  and  eigiity-two  dollars  and  twenty-one  cents,  in  full  of  said 
claim,  due  the  15th  of  January,  1855. 

38.  George  Houqhton, 

Presented  March  13,  1854 — Heard  May  26,  and  submitted — Award. 

For  return  of  specie,  alleged  to  belong  to  the  claimant,  taken  on 
board  a  pirate  vessel  captured  by  a  United  States  vessel  of  Avar. 

January  2,  1855. — The  commissioners  awarded  the  sum  of  two 
thousand  five  hundred  dollars,  in  full  of  said  claim,  due  the  15th  of 
January,  1855. 

39.  Tub  Baron  Kenfrew,  Duncan  Gihb,  oicncr. 

Presented   March  C,   1854— Heard  March  21,   and   submiftcd— Disagreement  of  commii- 
sioners  on  tlio  amount  of  damage — Award  of  umpire. 

For  seizure  and  detention  of  the  above  vessel  at  San  Francisco. 

October  28. — The  commissioners  disagreed  as  to  the  amount  of  dam- 
age to  be  awarded,  and  the  case  was  referred  to  the  umpire,  and  was 
submitted  by  the  agents  to  his  decision  on  the  papers. 

December  23. — The  umpire  awarded  the  sum  of  six  thousand  dol- 
lars, in  full  of  said  claim,  due  the  15th  January,  1855. 


''*!.. 


I 


id  re-ex- 

hundred 
bid  claim, 


breaking 
-ed  in  res- 
territorial 

I  thousand 
full  of  said 


d. 

b,  taken  on 

war. 

im  of  two 

he  15th  of 


nt  of  commli- 

ncisco. 
lint  of  dam- 
re,  and  was 

jusand  dol- 


I 


CONVENTION   WITH  GREAT  BRITAIN. 


40.  Alexander  McLeod. 


69 


I 


Presented  March  13,  1854 — Statement  made  by  Mr.  McLeod,  by  consent,  September  27^ 
Heard  before  the  commissioners  and  umpire  December  11 — Disagreement  of  commia- 
sioners  January  2 — Disallowed  by  the  umpire. 

For  damage  occasioned  by  his  arrest,  detention,  and  trial  in  New 
York,  on  charge  of  being  concerned  in  the  destruction  of  the  steamer 
Caroline. 

January  2. — The  commissioners  disagreed  on  the  allowance  of  the 
claim,  and  it  was  referred  to  the  umpire. 

January  15. — Claim  disallowed  by  the  umpire. 

41.  Charles  Uhde. 

Presented    June    14,    1854 — Heard    January  8,   18.55 — Disagreement  of   commissioners — 

Award  of  umpire. 

For  the  seizure  and  alleged  confiscation  of  merchandise  by  the 
United  States  forces  in  Matamoras,  during  the  year  1846. 

January  9, 1855. — The  commissioners  disagreed  on  the  allowance  of 
the  same,  and  it  was  referred  to  the  umpire. 

January  15. — The  umpire  awarded  the  sum  of  twenty -five  thousand 
dollars,  in  full  of  said  claim,  due  the  15th  of  January,  1855. 

42.  The  Sir  Robert  Peel,  Jonas  Jones  and  als.,  owners. 

Presented  March  13, 1854 — Submitted  on  the  papers  for  decision  December  9 — Disallowed. 

For  destruction  of  the  above  vessel  in  the  river  St.  Lawrence,  in 
1838,  by  persons  alleged  to  be  citizens  of  the  United  States. 
January  2. — Claim  disallowed, 

43.  Messrs.  Butterfield  and  Brothers. 

Presented  March  13,  1854 — Heard  July  8,  and  submitted — Dismissed. 

For  tlic  repayment  of  duties  levied  on  tlieir  goods  beyond  those  paid 
by  citizens  of  other  nations,  contrary  to  the  treaty  of  1815. 
No  evidence  submitted. 
Dismissed. 

44.  J.  P.  Oldfield  &  Co. 

Presented  May  23,  1854 — Heard  July  8,  and  submitted — Award. 

For  the  repayment  of  duties  levied  on  their  goods  beyond  those  paid 
by  the  citizens  of  other  nations,  contrary  to  the  treaty  of  1815. 


70 


ADJUSTMENT  OF   CLAIMS  UNDER  THE 


January  13,  1855. — The  commissioners  award  the  sum  of  three 
thousand  ninety-nine  dollars  and  fifty -four  cents  to  Charles  Turner, 
official  assignee  of  J.  P.  Oldfield,  of  Manchester,  in  full  of  the  claim 
of  said  oomp-ny,  to  the  15th  of  January,  1855. 

45.  Charles  Kenworthy,  {George  H.  Taylor,  agent.) 

Presented  Mnrcli  15,  1854— Heard  November  1,  and  submitted— Disallowed. 

For  return  of  moneys  alleged  to  be  illegally  obtained  by  the  collec- 
tor of  customs  of  New  York,  on  a  charge  of  having  entered  goods  with 
false  invoices. 

November  13. — Claim  disallowed. 

46.  James  Shaw,  (Geouge  H.  Taylor,  agent.) 

Presented  March  15,  1854 — Heard  November  4,  and  submitted — Disallowed. 

For  return  of  duties  as  above,  in  No.  45. 
November  13. — Claim  disallowed. 

47.  John  Taylor,  Jun.  ,  hy  his  executors,  Francis  Shaw  and  als. 

Presented  March  15,  1854 — Heard  January  6,  1855,  and  submitted — Disallowed. 

For  return  of  moneys  alleged  to  be  illegally  obtained  by  the  collector 
of  customs  at  New  York,  as  a  compromise  of  a  suit  brought  on  a  charge 
of  having  entered  goods  with  false  invoices. 

January  13. — Claim  disallowed. 

48.  Messrs.  Kerford  &  Jenkin,  merchants  in  Zacatecas,  Mexico. 

Presented  December  1,  1853 — Question  of  jurisdiction  raised — Heard  April  6 — Heard  also 
on  its  merits  .Tunc  24 — Disagreement  of  the  commissioners — Heard  before  tiie  umpire 
on  its  merits  November  15 — Disallowed  by  the  umpire. 

Claim  for  detention  by  the  United  States  forces  of  the  caravan  of 
Kerford  &  Jenkin,  conveying  goods  to  the  interior  of  Mexico,  during 
the  year  1846. 

November  13. — The  commissioners  disagreed  on  the  allowance  of 
the  claim,  and  the  case  was  referred  to  the  umpire. 

January  10. — Claim  disallowed  by  the  umpire. 

49.  Charges  Green. 

Presented  March  13,  1854,  and  submitted  on  the  papers — Disallowed. 

For  the  seizure  of  certain  hardware  goods  at  San  Francisco,  by 
United  States  revenue  officers. 
October  10. — Claim  disallowed. 


I 


«l. 


CONVENTION   WITH    GREAT    BRITAIN. 


%S 


f  three 
[•urner, 
0  claim 


(  coUec- 
ds  with 


id. 


d  als. 

wed. 

3ollector 
I  charge 


[exico. 

Heard  also 
he  umpire 

ravan  of 
,  during 

,'ance  of 


;i8C0,  by 


50.  WiUiiAM  Pattbiison. 

Presontod  February  23,  1854— Hjard  and  submitted— Disallowed. 

For  injuries  alleged  to  have  been  received  at  Matamoras  from  the 
forces  of  the  United  States. 
October  11. — Claim  disallowed. 

51.  John  Potts. 

Prosontod  January  13,  1834 — Disallowed. 

For  losses  occasioned  by  the  closing  of  his  mint  in  Mexico  by  tne 
forces  of  the  United  States. 
Claim  disallowed. 

52.  Messrs.  Glen  &  Co. 

Presented  March  13,  18.'>4 — Submitted  on  papers — Dismissed. 

For  the  seizure  of  wines  and  other  spirits,  at  San  Francisco. 
October  18. — Claim  dismissed  as  being  in  progress  of  settlement  by 
the  Secretary  of  the  United  States  Treasury. 

53.  P.  B.  Murphy. 

Presented  March  13,  1854— Withdrawn. 

For  return  of  duties  on  brandy,  levied  at  San  Francisco. 

Claim  withdrawn — the  duties  having  been  refunded  by  the  collector. 

54.  Charles  B.  Hall. 

Presented  March  13,  1854— Withdrawi*. 
For  the  illegal  seizure  of  goods  at  Cincinnati,  b)  iJaited  States  cus- 
tom-house officers. 
Claim  withdrawn. 

55.  The  Mary  Ann»-, 

Presented  March  13,  1854 — Disf.llowed. 

For  loss  arising  out  of  infringement  of  the  emigrant  passenger's  act. 
Claim  disallowed. 

50.  The  Ship  Herald. 

Presented  March  13,  1854 — Submitted  on  the  papers — Dismissed. 

For  injuries  received  at  Marseilles  by  the  United  States  sloop-of- 
war,  Erie. 
Claim  dismissed. 


ADJUSTMENT  OP  CLAIMS  UNDER  THE 


I   , 


57.  Hon.  W.  Black. 

Presented  March  13 — Submitted  on  the  papers  May  26 — Disallowed. 

For  lands  in  the  Territory  of  New  Brunswick,  included  by  location 
and  adjustment  of  boundary  line  within  the  State  of  Maine. 
Claim  disallowed. 

58.  Lord  Cartarbt. 

Presented  January  9,  1854,  and  submitted  on  the  papers — Disallowed. 

Claim  to  lands  granted  his  ancestors  in  North  and  South  Carolina, 
of  wliich  he  alleges  himself  to  be  entitled. 
Claim  disallowed. 

59.  Earl  of  Dartmouth. 

Presented  January  10,  1854,  and  submitted  on  the  papers — Disallowed. 

Claim  for  lands  formerly  granted  to  him,  situated  in  East  Florida. 
Claim  disallowed, 

60.  The  Keprksbntatives  op  Colonel  Elias  Durnford. 

Presented  March  13,  1854 — Heard  May  26,  and  submitted  on  the  papers — Disallowed. 

Claim  for  lands  formerly  granted  Colonel  Elias  Durnford  in  Florida. 
Claim  disallowed. 

61 .  James  H.  Rogers. 

Presented  March  15.  1854,  and  submitted  on  tiie  papers — Disallowed 

For  the  recovery  of  lands  in  Florida. 
Claim  disallowed. 

62.  Thomas  Whyte. 

Presented  March  13,  1854— Heard  May  26,  and  submitted — Disallowed. 

For  the  recovery  of  lands  in  Florida. 
Claim  disallowed. 

03.  G.  lloTCHFORD  Clarke. 

Presented  March  13,  1854 — Heard  May  5th  and  6th,  on  question  of  jurisdiction,  and  sub- 
mitted— Disallowed 

For  the  recovery  of  lands  in  Vermont,  or  the  value  thereof,  granted 
to  his  ancestors  by  the  State  of  New  York,  prior  to  the  admission  of 
Vermont  into  the  Union,  and  which  wore  claimed  to  be  reserved  to 
the  proprietors  under  provisions  of  treaty  between  the  United  States 
and  Great  Britain. 

Claim  disallowed. 


CONVENTION   WITH   GREAT  BRITAIN. 


73 


r  location 


Carolina, 


Bd. 

Florida. 

,D. 
)isalIowed. 

n  Florida . 


red. 


ition,  and  sub- 

of,  granted 
Imission  of 
'cservod  to 
it(^d  States 


64.  Barque  Pearl,  James  Tindoll,  et  al.,  otvners. 

Presented  March  13,  1854 — Heard  May  18,  and  submitted — Disallowed. 

For  the  seizure  and  confiscation  of  the  above  vessel  at  San  Fran- 
cisco, for  alleged  breach  of  the  United  States  navigation  laws. 
Octohe}'  28. — Claim  disallowed. 

65.  Duties  on  cotton  goods,  Charles  Wirgman,  agent. 

Presented  March  15,  1854 — Heard  July  8,  and  submitted. 

Claim  for  return  of  duties  levied  on  cotf-on  goods  beyond  those  paid 
by  other  nations,  in  contravention  of  the  treaty  of  commerce  of  1815. 

January  13,  1855. — Claims  in  favor  of  the  following  persons  were 
severally  allowed  by  the  commissioners  for  the  sums  specified  against 
their  names,  amounting  in  all  to  twenty-nine  thousand  seven  hundred 
and  sixty  dollars  and  fourteen  cents  : 


Names. 


Residence. 


Wotherspeon  &  Wolford Liverpool 

Joim  Tvvigg do... . 

William  A.  Brown do. . . . 

Andrew  Taylor |. . .  .do. . . . 

William  Fielden  &  Co |....do. ... 

Timothy  Wiggin .1  London.. 

George  Wildes .do. . . . 

Charles  Jackson '  Leigh  . . . . 

Abraimm  Turner ;  Chorluy. . 

John  Oardwcll  &.  Co I  Paii^wcll  . 

Martin  &.  Lee !  Panhead  . 

Patrick  Mitchell {  Glasgow  . 

John  Framr  S  ion !. . .  .do.... 

John  McPhail | do.... 

Jarcd  11.  Cogan i . . .  .do. . . . 

Buchanan  &.  Mitchell j...  .do. . . . 

P.  Hutchinson  &.  Co j.  ...do... . 

William  Sncll ' . . .  .do. . . , 

..do... 

..do..., 

.  .do. . . , 

..do... 

..do... 

..do.... 

.  .do. . . , 

.  .do. . . 

.  .do. . . 

.  .do. . . 

.  .do. . . 


J.  Rollo&Co 

John  Black 

William  Alston 

J.  Walston 

J.  McDoug.ill 

Warden,  Walker  &  Hill 

Patrick  McGregor 

David  Mackinlay 

John  Todd  &  Co 

Gilc!irist,Risk&Co.... 
John  Dick 


Amounts. 

$1,510  60 
97  20 
338  82 
337  27 
158  95 
2,816  94 
68  U6 
292  51 
129  81 
44  50 
218  06 
296  72 
1,016  39 
286  48 
250  86 
0      278  61 
326  59 
177  00 
147  39 
116  39 
113  75 
107  25 
112  66 
102  40 
90  10 
95  00 
100  93 
76  72 
'  1  85 


74 


ADJUSTMENT  OF  CLAIMS   UNDER  THE 


i,      « 


Ni^mes. 


Black  &  Stewart 

John  Pinley 

Charles  Kerr  &  Co 

John  McAIister  &  Co 

Ur«  &  Monteith , 

Duff  &  Stevenson 

Strine  Piintingr  Company 

FioMcn  Brother  &  John  Crosby 

John  KcNnl 

T.  Lotigshaw 

John  Ingham  &.  Co 

John  Knowles 

T.  Cariiwell  &  Co 

J.  &  S.  Bury 

Willi,'! II.  Lindsay 

R.  F.  ot 

H.iri^recvcs,  Dugdale  &  Co 

'Do  n  &  Brothers,  (Bolton,)  near 

P  J'v.n  &,  Brothers 

Hiir\  i'-'un  U  Beam 

J   &.'-'.  Ramsbotham 

J.  't.  G.  Junes , 

fliHue.     Voods  Weston,  exert'r  ot'Tlios.  Calvert,  la',-; 
fJohn  '.'Icgg,  executor  of  William  Turner,  late  of  ... 

John  Ivnight  &  Co 

J.  &  J   Ashton 

R.  Bleasby 

F.  Dixon 

John  A.  Ilubson 

F.  Slatter , 

fGeorge  Faulkner,  executor  of  John  Owens,  late  of. 

T.  BuriTcss 

William  Gray 

Sykes  &.  Yates , 


Residence. 


of., 


Glasgow  . . . 

...do 

...do 

...do 

...do 

. .  .do 

Manchester . 

...do 

...do 

. .  .do 

...do 

...do 

...do 

...do 

...do 

...do 

...do...... 

. .  .do 

...do 

...do 

...do 

...do 

. .  .do. ...... 

. .  .do 

...Jo 

. .  .do 

...do 

...do 

...do 

...do 

...do 

. .  .do 

. .  .do 


London 


Amounts. 


$69  58 

58  83 

85  29 

72  95 

65  65 

47  13 

60,5  79 

3U9  34 

269  21 

225  39 

234  60 

105  00 

297  70 

207  55 

200  73 

87  20 

,C89  48 

,2<);j  69 

.^a.-i  65 

,5262  18 

500  00 

,25:i  34 

,329  51 

,640  87 

948  54 

788  45 

405  51 

378  oa 

373  18 
339  17 
.325  07 
203  82 
475  41 
638  95 


30,260  14 


•Jane  Dean,  cxf  tutrix  of  J.  Dean,  (Bolton  ) 

t  In  these  thrne  cases,  the  probates  of  the  wills  of  the  parties  named  in  this  list,  (being  the 
surviving  jA^ncrs  of  the  firms  to  which  the  amounts  were  found  to  be  due,)  have  been  duly 
examined  by  the  commissioners,  and  fo'.md  to  h.  indue  form  and  properly  executed,  attested,  &c. 

Duties  on  cotton  ooods,  Charles  W'rgman,  agent. 

Claim  for  return  of  duties,  as  above,  by  John  A.  Hobson  and  An- 
drew  Taylor. 

January  13. — The  commissioners  award  to  John  A.  Hobson  the  sum 
of  forty-two  dollars  fifty -eight  cents,  and  to  Andrew  Taylor  the  sum 
of  one  hundred  and  seventy  dollars  and  seventy-six  cents,  in  full  of 
oaid  claims,  respectively,  to  January  15,  1855. 


■11!  i;s 


CONVENTION  WITH  GBEAT  B^ITAIH. 


75 


Amounts. 

$69  58 

58  83 

85  29 

72  95 

65  65 

47  13 

605  79 

309  34 

269  21 

225  39 

234  60 

105  00 

297  70 

207  55 

200  73 

87  20 

I, cm  48 

1,293  69 

i,?3r.  65 

1,1*62  18 

500  00 

l,25:i  34 

1,329  51 

3,640  87 

948  54 

788  45 

405  51 

378  02 

373  18 

339  17 

325  07 

203  82 

475  41 

638  95 

30,260  14 

id  An- 


CG.  Claim  for  return  of  duties  levied  on  cotton  goods,  as  above,  in 
No.  65,  Andrew  Mitchell,  agent. 
January  6,  1855. — Claims  in  favor  of  the  following  persons  were 
severally  allowed  by  the  commissioners  for  the  sums  specified  against 
their  names,  amounting,  in  all,  to  twenty  thousand  six  hundred  and 
two  dollars  and  sixty-five  cents  : 


Names. 


Residence. 


Robert  Gourlay  &  Co 

R.  G.  Finliiy  &.  Brothers 

John  Alston  &  Son 

John  Ker,  jr 

John  Spencer  &  Son 

Fort,  Qrotliors  «c  Co 

Late  Patrick  Mitchell 

George  Berrcll 

Mitchell  &  Kcr,  jr 

Fort,  Brothers  &  Co.,   Manchester,  and  Ker,  jr.,  and 

Alston  &  Son •  • .  .do 

Berrcll  (Dunfcrmnline)  and  Mitchell ;....do 

Borrell  (Dunfcrmnline)  and  Finley  &  Brothers |. . .  .do 

Spencer  &  Sons  (Manchester)  and  Mitchell do 

Berrell,  (Dunfermnline,)  and  Brown  &  Co.,  Mitchell, and 

Finlay  Is.  Brothers  

Mitchell,  Finlay  &  Brothers 


Glasgow 

...do , 

. .  .do , 

. .  .do 

iVianchester .. 

...do 

Glasgow 

Dunfcrmnline 
Glasgow 


Amounts. 


do. 
do. 


$501  52 

2,39)  01 

336  79 

806  64 

180  76 

1,112  27 

4,007  55 

516  64 

452  01 

1,012  30 
3,840  76 
1,339  53 
1,183  96 

2,062  03 
914  91 


20,602  65 


6*7.  Geoiiqe  and  Samuel  Shaw. 

Presented  March  15,  1854— Heard  January  6,  1855,  and  submitted — Disallowed. 

For  return  of  moneys  alleged  to  be  illegally  obtained  by  the  collec- 
tor of  customs  of  New  York  in  compromise  of  a  suit  brought  on  charge 
of  having  entered  goods  with  false  invoices. 

Jamiary  13. — Claim  disallowed. 

68.  William  Broadbent. 

Presented  March  13,  1854 — Heard  January  6,  1855,  and  submitted— Disallowed 

For  return  of  moneys  as  above,  in  No,  67. 

January  13,  1855. — Claim  disallowed  by  the  umpire. 

69.  William  Bottomlby,  hyhis  executors. 

Presented  March  15,  1854— Hoard  January  12,  1855,  and  swbmitted— Disallowed. 

Claim  for  return  of  moneys,  as  above,  in  No.  67. 
January  13. — Claim  disallowed. 


76 


ADJUSTMENT  OP  CLAIMS  UNDER  THE 


70.  The  Crosthwaitb,  Messrs.  Stuart  dt  Simpson,  owners. 

Presented  March  13,  1854— DiBmigeed. 

For  seizure  of  the  above  vessel  at  New  Orleans. 
Dismissed. 

71.  Ship-owner's  Society. 

Presented  March  13,  1854 — Dismissed. 

For  seizure  of  the  Ann  in  1819. 
Dismissed.  -       . 

72.  The  Duckenfield,  Messrs.  David  Lyon  d  Co.,  oioners. 

Presented  March  13,  1854 — Dismissed. 

For  return  of  discriminating  duties  levied  on  the  above  vessel. 
Dismissed. 

73.  The  Science,  Messrs.  Wilson  (k  McLellan,  oioners. 

Presented  March  13,  1854 — Dismissed. 

For  return  of  duties  levied  on  the  above  vessel  during  the  year  1840, 
Dismissed. 

74.  The  Prosperity,  Messrs.  Musgrave,  owners. 

Presented  March  13,  1854 — Dismissed. 

For  excess  of  duties  imposed  on  said  vessel. 
Dismissed. 

75.  Anglo-Mexican  Mint  Company. 

Presented  March  13,  1854 — Dismissed. 

For  Joss  caused  by  order  of  the  United  States  proliibiting  the  ex- 
portation of  gold  from  Mexico. 
Dismissed. 

The  forcgoinij;  docket  contains  a  correct  report  of  awards  and  judg- 
ments made  on  claims  of  British  subjects  against  tlie  United  States 
government,  after  full  hearing  and  examination  thereof,  and  wc  here- 
by place  our  signatures  to  the  same,  to  be  applied  thereto  in  the  same 
manner  and  as  fully  as  if  severally  affixed  to  each  of  said  awards  and 
judgments. 


CONVENTION   WITH    GREAT   BRITAIN. 


77 


'.rs. 


ners. 


The  awards  of  moneys  therein  made  are  to  be  paid  by  the  United 
States  government  to  the  T)riti8h  government,  for  the  benefit  of  the 
several  claimants,  their  attorneys,  legal  representatives  or  assigns, 
and  said  awards  are  to  be  regarded  as  bearing  date  from  the  13th  of 
January,  1855. 

N.  G.  UPHAM, 

United  Slates  Commissioner. 


EDMUND  HORNBY, 

British  Commissioner. 


January  13,  1855. 


ressel. 


rs. 


year  1840. 


ing  the  ex- 


ORDER    OP    COMMISSIONERS    AND    THE    UMPIRE,     AS    TO    THE    RATE  OF    EX- 
CHANGE APPLICABLE  TO  THE  AWARDS   MADE  BY  THEiM. 

The  commissioners,  by  and  with  the  concurrence  of  the  umpire, 
hereby  establish  the  relative  rate  of  payments  of  the  awards  made  by 
them  in  the  currency  of  the  respective  countries  of  Great  Britain  and 
the  United  States,  at  four  dollars  and  eighty-four  cents  to  the  pound 
sterling. 

N.  G.  UPHAM, 
United  States  Commissioner. 

EDMUND  HORNBY, 

British  Commissioner. 


January  13,  1855. 


JOSHUA  BATES,  Umpire. 


s  and  judg- 
aitod  States 
nd  wc  here- 
in the  same 
awards  and 


i 


78 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


RECAPITULATION. 


Aivards  of  moneys  made  under  the  convention  for  the  adjustment  of 
claims  of  February  8,  1853,  in  behalf  of  the  United  States  claimant^ 
OAjainst  the  British  government. 


Names  of  parties 


Amounts 
awarded. 


N.  L.  llogers  &  Brothers 

Barque  Jones,  P.  J.  Parnharn  &  Co.  owners 

Scliooner  John,  Reuben  Shapely  owner 

The  Only  Son,  Fuller  &  Delano  owners 

Brig  Creole,  Edward  Lockett  el  als.  owners 

Brig  Douglas,  Amos  Frazar  owner 

Schooner  Caroline  Knight,  George  W.  Knight  tt  als.  owners  . 
The  Tigris  and  Seamew,  Messrs.  Brookhouse  &  Hunt  owners. 

Scliooner  Argus,  Doughty  master 

Schooner  Washington 

ririg  Enterprize,  Joseph  W,  Ncal  el  nls.  owners 

Schooner  Hcrniosa,  Now  Orleans  Insurance  Company  et  als  . . 


$7,676  96 

100,625  00 

13,608  22 

1,000  00 

110,330  00 

600  00 

1,887  60 

24,006  40 

2,000  00 

3,000  00 

49,000  00 

16,000  GO 


Amoiintino-  in  all  to  the  sum  of 3^9,734  16 


Or,  at  the  relative  value  of  exchange  as  established  by  the  commissioners,  to 
(:f68,13l  Os.  75(/.)  sixty-eight  thousand  one  hundred  and  thirty-one  pounds  seven  and  one- 
half  pence  sterling. 


ill    i 


CONVENTION  With  great  Britain. 


79 


adjustment  of 
(ates  claimant^ 


RECAPITULATION. 


Aimrds  of  moneys  made  under  the  convention  for  the  adjustment  of 
claims  of  February  8,  1853,  in  behalf  of  British  claimants  against 
the  United  States  government. 


Amounts 
awarded. 


|7,G76  96 
100,625  00 
13,608  22 
1,000  00 
110,330  00 
6G0  00 
1,887  60 
24,006  40 
2,000  00 
3,000  00 
49,000  00 
16,000  00 

"329.734  16 


commissioners,   to 
unds  seven  and  one- 


Names  of  parties. 


Amounts 
awarded. 


Thomas  Rider 

Tlie  Francis  and  Eliza,  Chrintoplier  Richardson  owner. 

Ship  Albion,  John  Lidgett  owner 

Steamer  Beaver,  Hudson  Bay  Company  owner 

Great  Western  Steamship  Company 

The  James  Mitchell,  Francis  Aslttoy  et  a!s.  owners. .. . 

Miller  &  Mcintosh 

Brig  Lady  .Shaw  Stewart,  George  Buckham  owner.... 

Godfrey,  Pattison  &  Co 

Messrs.  McCalmont  &  Greaves 

Andrew  Mitclipll 

Hudson  Bay  Company,  (claim  for  return  of  dutits). .. , 

Brigantine  Confidence 

Hudson  Bay  Company,  (Cayeuso  war  claim) 

George  Houghton 

The  Baron  Renfrew,  Duncan  Gibb  owner , 

J.  P.  Oldfield&Co , 

Charles  Wirgman 

Charles  Uhde i 


$G25  00 

34,227  00 

20,000  00 

1,000  00 

13,500  00 

20,000  GO 

6,000  00 

6,000  00 

G1,G89  54 

11,733  53 

20,602  65 

1,523  68 

9,946  20 

3,182  21 

2,. 500  00 

6,000  00 

3,099  54 

30,473  48 

25,000  00 


Amounting  in  all  to  the  sum  of 277 ,  102  88 

Or,  at  the  relative  value  of  exchange  as  established  by  the  commissioners,  to 
(i'57,252  135.  id.)  fifty-seven  thousand  two  hundred  and  fifly-two  pounds  thirteen  shillings 
and  four  pence.  ' 


^, 


<3^    ^ 


IMAGE  EVALUATION 
TEST  TARGET  (MT-3) 


1.0 


Li|2£    125 

1.1    l.-^'^" 


IL25  i  1.4 


I 


Photographic 

Sciences 

Corporation 


33  WIST  MAIN  STRUT 

WnSTIR.N.Y.  MSSO 

(716)  t72-4503 


\ 


^. 


•s§ 


:\ 


\ 


6^ 


o^ 


s 


80 


ADJUSTMENT   OF  CLAIMS  UNDER  THB 


EXPENSES  OF  COMMISSION. 


Salary  of  commissionere  at  #3,000  or  £620  per  annum,  each,  for  sixteen 
months,  from  September  15,  1833,  to  January  15,  1855,  during  the  actual 
time  of  session 

Clerk's  salary 

Messenger's  salary,  &c 

Rent  of  office  from  September  29, 1853,  to  March  25, 1855,  at  .^0  per  annum . 

Housekeeper's  account  during  the  above  time 

Stationers' and  copyists'  bills 0, 

Printing  and  binding  of  the  commissioners'  judgments  and  printing  also  of 
report  for  the  two  governments 

Messrs.  Quilter  &  Ball's  bill,  as  accountants 

Clerk  hire  of  umpire • 

Coals  and  wood 

Incidental  postage,  &c 


£     d. 

*. 

1,653  6 

8 

399  6 

4 

97  0 

0 

135  0 

0 

24  0 

0 

68  6 

6 

120  0 

0 

57  15 

0 

4  10 

0 

11  10 

0 

18  0 

0 

2,588  16    6 


The  commissioners  leave  it  to  the  two  governments  to  determine  the 
time  when  the  salaries  of  the  commissioners  should  commence  and 
terminate,  and  what  travelling  expenses,  if  any,  should  be  allowed  to 
the  appointed  place  of  meeting,  and  return  from  the  same,  and  the 
compensation  to  be  allowed  to  the  umpire. 

Such  further  amounts  as  may  be  allowed  on  these  accounts  are  to 
be  added  to  the  expenses  hereabove  written,  which  expenses  we  certify 
to  be  true  and  correct,  and  that  they  are  to  be  defrayed  by  a  ratable 
deduction  from  the  total  amount  awarded  by  the  commissioners,  agree- 
ably to  the  6th  article  of  the  convention,  provided  that,  if  they  shall 
exceed  the  rate  of  five  per  cent,  on  such  total  amount,  the  deficiency 
is  to  be  defrayed  in  moieties  by  the  governments. 

By  the  convention  it  was  left  to  the  respective  governments  to  ap- 
pear in  behalf  of  the  claimants  by  counsel  or  agents,  or  not,  at  their 


)unts  are  to 
;8  we  certify 
t)y  a  ratable 
ners,  agree- 
f  they  shall 
le  deficiency 


CX>NyENTION  WITH  GREAT  BRITAIN. 


81 


option,  and  no  compensation  was  established  for  such  agents.  The 
commissioners,  therefore,  leave  the  amount  due  to  the  agents  to  be  de- 
termined by  their  respective  governments. 

N.  G.  UPHAM, 

United  States  Commissioner. 

• 

EDMUND  HORNBY, 

British  Commissioner. 


£    d.   *. 


1,653  6  8 

399  e  4 

97  0  0 

135  0  0 

24  0  0 

68  6  8 


130    0 

0 

57  15 

0 

4  10 

0 

11  10 

0 

18    0 

0 

3,588  16 

6 

termine  the 
imence  and 
1  allowed  to 
le,  and  the 


Note. — By  the  civil  and  diplomatic  appropriation  bill  of  March  3, 1855,  the  sum  of  twelve 
thousand  dollars  each  was  allowed  by  Congress  for  the  services  and  expenses  of  the  American 
commissioner  and  agent. 


I  hereby  certify  that  I  have  duly  examined,  with  a  view  of  authenti- 
cating the  same,  the  foregoing  records  of  the  commission,  with  the 
transcript  thereof  for  the  government  of  Great  Britain,  and  have  found 
the  same  to  be  correct. 

And  I  further  certify  that  the  signatures  therein  are  the  genuine 
signatures  of  the  commissioners  and  umpire. 

Dated  this  20th  day  of  January,  in  the  year  of  our  Lord  1855. 

N.  L.  UPHAM, 
Secretary  of  Commission  on  Claims. 
[seal  of  commisiion.] 


#* 


iients  to  ap- 
lot,  at  their 


THE  UMPIRE  OF  THE  LONDON  COMMISSION. 


Note. — Mr.  Bates,  of  London,  was  selected  as  umpire,  by  agreement 
between  the  commissioners.  It  so  happened  that  many  of  the  most 
important  questions  that  came  before  the  commission  were  referred  to 
him  for  decision^  which  rendered  his  labors  arduous,  and  his  responsi- 
bility great.  Although  provision  was  made  in  the  treaty  to  compen- 
sate him  for  his  services,  yet  he  refused  to  receive  any  remuneration 
whatever. 


% 


f 

5 


REPORTS  OF  DECISIONS  BY  THE  COMMISSIONERS, 


AND  THE 


ARGUMENTS  OF  COUNSEL. 


agreement 
)f  the  most 
referred  to 
is  responsi- 
|to  compen- 
muneration 


VI 


The  following  constitute  the  reports  of  decisions  drawn  up  in  the 
principal  cases  hy  the  commissioners. 

Other  cases,  which  depended  mostly  on  questions  of  fact,  or  in  which 
no  important  principle  of  international  law  was  involved,  are  hriefly 
stated,  with  the  reasons  assigned  for  their  decision,  in  the  preceding 
report  of  awards. 


BARQUE  JONES. 


The  barque  Jones  was  seized  in  the  harbor  of  St.  Helena,  on  chargres — 

I.  Of  being  in  British  waters,  without  having  ship's  papers  on  board,  and  therefore  without 
national  character. 

n.  For  being  engaged  in  and  equipped  for  the  slave  trade. 

There  was  a  competent  court  for  the  trial  of  these  charges  at  St.  Helena,  but  the  barque 
was  taken  to  Sierra  Leone  for  trial,  and  the  charge  of  being  engaged  in  and  equipped  for  the 
slave  trade  was  adjudged  by  the  court  there  "  to  be  without  foundation,  and  destitute  of  any 
probable  cause  to  sustain  it."  It  appeared,  also,  that  the  ship's  papers  were  duly  deposited  at 
the  collector's  and  consul's  offices,  on  her  arrival,  as  required  by  law,  but  the  court  assessed 
the  vessel  in  costs,  on  the  ground  of  alleged  resistance  to  conp'  'tuted  authorities,  and  it  waa 
sold  at  auction  for  the  payment  of  these  charges. 

Held,  that  the  allegation  of  being  without  ship's  papers,  and  without  a  national  character, 
was  unsustained  by  evidence. 

Held,  also,  on  the  judgment  delivered  by  the  court,  that  no  costs  could  be  taxed  against 
the  vessel,  and  that  no  resistance  to  authorities  was  shown.  And  further,  that  the  remoral 
of  the  vessel  from  St.  Helena,  where  a  competent  court  existed  for  the  trial  of  these  charge*, 
to  Sierra  Leone  ibr  trial,  was  a  violation  of  the  rights  of  the  parties,  and  that  the  owners  of 
the  Jones  were  entitled  to  full  remuneration  for  all  damages  sustained. 

The  case  was  fully  argued  hy  J.  A.  Thomas,  agent  and  counsel  for 
the  United  States,  and  hy  James  H annex,  agent  and  counsel  for  the 
British  government. 


4 


84 


ADJUSTMENT   OP   CLAIMS  UNDER   THE 


UriiAM,  United  States  Commissioner  : 

The  barque  Jones,  owned  by  P.  J.  Farnham  and  Company,  of 
Salem,  Massachusetts,  having  shipped  lier  crew  for  Montevideo,  and 
other  ports  north  of  the  thirty-sixth  parallel  of  south  latitude,  sailed 
from  Boston,  in  March  1840,  for  the  west  coast  of  Africa,  having  a 
valuable  assorted  cargo  for  a  trading  voyage  upon  that  coast. 

She  arrived  at  Ambriz,  on  the  coast  of  Africa,  on  the  Itth  of  June, 
and  landed,  and  disposed  of  a  considerable  portion  of  her  cargo,  con- 
sisting of  flour,  biscuit,  soap,  candles,  tea,  fish,  furniture,  lumber,  and 
gunpowder.  After  receiving  on  board  a  quantity  of  African  produce, 
she  sailed  for  Loando,  on  the  same  coast.  On  this  passage  she  was, 
in  violation  of  the  rights  of  her  flag,  boarded  and  overhauled  by  her 
Majesty's  armed  brig  Water  Witch,  but,  after  examination  of  her 
papers  and  cargo,  was  permitted  to  proceed  on  her  voyage. 

At  Loando  the  Jones  landed  a  considerable  quantity  of  merchandise, 
and  received  in  return  ivory  and  otiier  African  produce.  From  Lo- 
ando she  returned  again  to  Ambriz,  and,  after  taking  on  board  more 
produce,  sailed  for  St.  Helena,  where  she  arrived  on  the  24th  of 
August,  1840. 

She  was  regularly  entered  at  the  custom-house,  and  had  remained 
at  St.  Helena  twenty-one  days,  until  the  14th  of  September,  discharg- 
ing  and  receiving  cargo,  when  she  was  seized  by  her  Majesty's  ship 
Dolphin,  Lieutenant  Littlehales.  commander,  and  taken  from  St. 
Helena  to  Sierra  Leone  for  adjudication,  on  charges  specifically  set 
forth  in  the  affidavit  of  seizure,  the  opinion  of  the  court,  and  other 
papers  in  the  case. 

The  grounds  of  seizure  of  the  Jones,  as  set  forth  in  the  affidavit  of 
A.  C.  Murray,  mate  of  the  Dol])hin,  taken  before  the  officiating  judge 
of  the  vice-admiralty  court  of  Sierra  Leone,  on  the  5th  of  October, 
1840,  are,  that  the  Jones  ''was  found  in  British  waters,  without  any 
national  character,  and  having  no  ship's  papers  or  colors  on  board, 
and  for  being  engaged  in  and  fitted  and  equijiped  for  the  slave  trade, 
contrary  to  the  provisions  of  the  acts  of  5  Geo.  /K,  cli.  113,  and  of  2 
rf'3  Vic.,ch.  73." 

The  officiating  judge  in  the  court  of  vice-admiralty  states  the  charge 
in  the  same  manner,  reciting  that  it  was  alleged  "the  barque  Jones 
had  violated  two  acts  of  the  British  parliament,  viz:  the  2  and  3  Vic.f 


CONVENTION  WITH   GREAT  BRITAIN. 


96 


ch.  73,  and  the  5  Geo.  IV,  ch.  113;  against  the  first,  for  being  found 
in  British  waters  Avithout  any  national  character,  having  no  sliip's 
papers  on  hoard ;  and  against  the  latter,  for  being  engaged  in  and 
equipped  for  the  slave  trade." 

Lord  Palmerston  states  the  case  in  almost  the  same  words.  He 
says  that  the  Jones  was  seized  upon  two  grounds : 

^' First,  under  the  act  of  2  and  3  Vic,  ch,  73,  for  being  found  in 
British  waters  without  having  ship's  papers  on  board,  and  for  being 
therefore  without  any  national  character." 

"Secondly,  under  the  act  of  5  Geo.  IV,  ch.  113,  for  being  engaged 
in  and  equipped  for  the  slave  trade." 

In  each  of  these  statements  two  distinct  and  independent  charges 
are  alleged  as  separate  grounds  of  seizure,  and  each  of  them  are  based 
on  different  statutes.  It  is  perfectly  clear,  however,  that  the  first 
charge,  "of  being  found  in  British  waters,  without  having  ship's 
papers  on  board,"  is  not  an  offence,  as  alleged  under  the  2  and  3  Vic, 
and  that  no  jurisdiction  over,  or  right  of  seizure  of  the  vessel,  exists 
by  that  statute,  whatever  may  be  ker  papers,  except  as  based  on  her 
connexion  with  the  slave  trade ;  and  this  view  ot  the  statute  is  important, 
as  an  erroneous  construction  in  this  respect  has  caused  an  undue  and 
unwarrantable  importance  to  be  given  to  a  controversy  which  has 
arisen  as  to  the  papers  of  the  vessel. 

A  brief  reference  to  the  act  of  2  and  3  Vic  will  sustain  us  in  this 
position.  This  act  empowers  British  cruisers  ''to  capture  Portuguese 
vessels  engaged  in  the  slave  trade,  and  other  vessels  engaged  in  the 
slave  trade,  not  being  entitled  to  claim  the  protection  of  the  flag  of 
any  state  or  nation;"  and,  by  its  terms,  unless  the  charge  of  being 
engaged  in  the  slave  trade  is  sustained,  it  becomes  wholly  immaterial 
whether  the  Jones  had  papers  or  not,  so  far  as  the  statute  of  2  and  3 
Vic  is  concerned. 

The  charge,  therefore,  "of  being  found  in  British  waters  without 
having  ship's  papers  on  board,  and  having  no  national  character,"  ig 
no  allegation  of  an  offence  against  2  and  3  Vic,  and  the  whole  pro- 
ceeding, so  far  as  it  is  based  on  that  act,  falls  to  the  ground. 

The  only  remaining  ground  of  seizure  of  the  vessel  is  "  her  being 
engaged  in  and  equipped  for  the  slave  trade,"  which  is  charged  as  a 
violation  of  the  act  of  5  Geo.  IV.  It  becomes  necessary,  then,  to  look 
into  the  provisions  of  that  act.     We  concede  that  the  charge  of  being 


86 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


concerned  in  and  equipped  for  the  slave  trade  is  well  alleged  as  against 
that  statute,  and  the  vessel  is  to  be  holden  responsible  if  the  charge  is 
sustained  and  the  offence  is  prosecuted  agreeably  to  the  requirements 
of  law. 

By  that  act,  however,  it  appears  that  all  vessels,  seized  for  being 
concerned  in  the  slave  trade,  "shall  and  may  be  sued  for,  prosecuted, 
and  recovered  in  any  court  of  record,  or  vice-admiralty,  in  any  port 
in,  or  nearest  to  which  such  seizure  may  be  made,  or  to  which  such 
vessels,  if  seized  at  sea,  or  without  the  limits  of  any  British  jurisdic- 
tion, may  most  conveniently  be  carried." 

■  By  this  act,  vessels  seized  ^' at  sea,  or  without  the  limits  of  any 
British  jurisdiction,"  are  to  be  taken  to  the  nearest  and  most  convenient 
port  for  trial ;  but,  if  within  a  harbor,  and  an  established  and  com- 
petent jurisdiction,  they  are  to  be  there  tried.  The  vessel  in  this  case 
was  seized  at  St.  Helena,  where  there  had  long  been  a  court  of  record 
of  an  established  character^  and  competent  to  try  any  felony  or  capi- 
tal offence  against  the  laws  of  Great  Britain.  The  removal,  therefore, 
of  the  vessel  from  this  jurisdiction  to  the  remote  jurisdiction  of  Sierra 
Leone,  upon  the  coast  of  Africa,  was  an  illegal  act. 

The  object  of  the  act  of  2  and  3  Vic.  undoubtedly  was  to  give  au- 
thority to  seize,  in  the  open  sea,  Portuguese  vessels  and  vessels  having 
no  national  character,  concerned  in  the  slave  trade. 

In  harbor,  or  in  British  loaiers,  Portuguese  and  other  vessels  had 
always  been  liable  to  seizure  under  the  prior  act  of  5  Geo.  IV,  if  their 
masters  were  engaged  in  fitting  them  out  for  the  slave  trade.  The 
act  of  2  and  3  Vic.  was  not  at  all  required  to  give  jurisdiction  over  the 
Jones  in  the  harbor  of  St.  Helena.  If  she  was  guilty  of  being  con- 
cerned in  the  slave  trade  there,  whatever  might  be  her  papers,  she 
could  be  seized,  and  tried  at  once,  under  the  act  of  5  Geo.  IV,  where 
the  parties  were  all  present,  and  ready  for  trial,  without  removal  to 
a  distant  jurisdiction  where  the  very  same  issue,  of  being  concerned  in 
the  slave  trade,  was  to  be  tried.  Her  removal,  therefore,  to  Sierra 
Leone  was  without  any  excuse,  and  was  rendered  peculiarly  oppres- 
sive against  these  owners,  as  their  captain  was  excluded  from  his  ves- 
sel, without  money  or  means  of  conveyance  to  the  remote  jurisdiction 
of  Sierra  Leone,  a  thousand  miles  distant  by  water,  and  the  trial  was 
proceeded  with  without  any  attendance  on  the  part  of  the  owners. 
The  proceedings  of  Lieut.  Littlehales  were  in  clear  violation  of  the 


T- 


CONVENTION  WITH  6BEAT  BRITAIN. 


87 


act  of  5  Oeo.  IV,  under  which  the  only  valid  offence  against  the  vessel 
was  charged,  and,  under  the  circumstances  of  the  case,  were  of  a 
character  that  should,  of  itself,  render  him  and  his  government  re- 
sponsible for  all  damage  that  subsequently  accrued  to  the  owners  in 
the  loss  of  their  vessel.  If  the  seizure  had  been  made  and  the  offence 
had  been  solely  set  u»)  under  the  2  and  3  Vic,  it  would,  in  my  opinion, 
have  made  no  difference,  as  there  certainly  was  the  alternate  of  a  fair 
and  speedy  trial  of  the  vessel  at  St.  Helena,  under  the  act  of  6  Geo. 
IV,  for  the  only  essential  charge  against  her  ;  and,  under  the  circum- 
stances of  this  case,  it  would  have  been  the  imperative  duty  of  Lieut. 
Littlehales  to  have  proceeded  under  that  statute.  His  removal  of  the 
vessel  to  Sierra  Leone,  under  any  form  of  process,  would  have  been  in 
violation  of  the  spirit  of  the  statutes  relative  to  the  slave  trade,  taken 
in  connexion  with  each  other,  and  against  the  first  principles  of  right 
and  justice  in  the  trial  of  offences. 

We  shall  now  proceed  to  consider  the  proceedings  had  at  Sierra 
Leone. 

Immediately  on  the  arrival  of  the  vessel  there,  it  appears,  from  the 
papers  in  the  case,  that  public  notice  was  given,  for  the  first  time,  of 
the  offence  for  which  the  vessel  was  seized,  by  posting  up  a  notice  "  on 
a  conspiciuous  part  of  the  public  wharf  of  Freetown,"  fourteen  days 
before  the  adjudication  of  the  court,  not  that  the  vessel  was  to  be  tried, 
but  that,  according  to  the  provisions  of  law,  she  was  to  be  "condemned, 
unless  the  owners  should  appear  and  show  just  cause  to  the  contrary." 

For  the  facts  proved  on  trial  relative  to  the  offence  charged,  we  shall 
look  to  the  decision  of  the  court,  without  going  behind  it,  unless  it 
should  be  hereafter  deemed  necessary. 

The  knowledge  of  the  court,  by  its  resic'jAoe  on  the  African  coast- 
with  all  matters  of  African  commerce,  and  ts  familiarity  with  every 
fact  tending  to  show  a  connexion  with  the  slave  trade,  is  far  greater 
than  any  information  that  can  be  possessed  on  these  subjects  by  this 
commission.  So  long,  therefore,  as  the  decision  of  the  court  is  confined 
to  facts  of  this  nature,  relative  to  the  offence  on  trial  before  it,  we  shall 
regard  it  as  the  highest  authority  of  which  the  case  admits.  The 
captors,  also,  cannot  complain,  as  the  decision  of  the  court  at  Sierra 
Leone  was  made  after  a  full  hearing  on  their  part,  and  an  examination 
of  all  testimony  they  chose  to  present. 

The  witnesses,  also,  selected  and  taken  to  Sierra  Leone,  had  been 


88 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


■*' 


f 


engaged  in  a  bitter  controversy  with  the  captain  of  the  vessel,  and 
were  in  open  hostility  to  him.  Notwithstanding  these  adverse  cir- 
cumstances, and  the  fact  that  the  court  were  to  proceed  by  law,  in  the 
outset,  on  the  assumption  that  the  vessel  was  guilty,  her  acciuittal  on 
all  the  grounds  on  which  she  was  seized  was  most  triumphant  and 
complete.  The  court,  in  its  opinion,  from  which  I  shall  make  full 
extracts,  says:  "  I  shall  dispose,  in  the  first  place,  of  the  question 
as  regards  this  vessel's  national  character ;  for,  if  it  be  made  to  appear 
to  my  satisfaction  that  she  was  duly  documented,  and  that  there  are 
fair  and  reasonable  grounds  for  presuming  that  she  was  entitled  to 
claim  the  protection  of  the  flag  and  pass  of  the  United  States,  the  al- 
legation against  her,  under  the  act  of  2  and  3  Vic,  ch.  73,  must  "on- 
flequently  fail  and  fall  to  the  ground." 

"  I  have  had  already  occasion,"  he  observes,  "to  remark,  that  the 
vessel  was  visited  and  detained  for  two  hours,  on  the  2d  of  July  last, 
by  her  Majesty's  brig  Water  Witch,  and  I  can  have  no  rational  doubt 
but  that  her  papers  then  exhibited  to  the  boarding  officer  fully  proved 
her  American  character.  The  vessel  having  gone  to  St.  Helena,  and 
having  remained  there  twenty-one  days,  discharging  and  receiving 
cargo,  must  necessarily  have  come  under  the  immediate  notice  of  the 
constituted  authorities  of  that  island  ;  and  it  cannot  be  supposd  that, 
at  a  place  where  a  custom-house  is  established,  a  vessel  would  be  al- 
lowed to  lie  so  long,  and  transact  business  with  the  island  upon  an 
extensive  scale,  and  which  must  have  been  done  with  the  knowledge 
and  consent  of  the  collector,  without  his  satisfying  himself  of  her  na- 
tional character." 

To  ascertain  this  point,  the  first  preliminary  step  would  be  the  pro- 
duction of  the  ship's  papers  at  the  custom-house.  I  have  therefore 
come  to  the  conclusion  that  the  charge  of  the  vessel  "being  found  in 
British  waters,  without  a  national  character,  must  be  dismissed." 

The  court  then  proceeds  to  examine  into  the  charge  of  the  vessel's 
being  concerned  in  the  slave  trade.  In  remarking  on  the  paper  which 
had  been  signed  by  a  portion  of  the  crew  of  the  Jones,  protesting 
against  going  to  the  coast  of  Africa,  and  which  is  alleged  as  the 
original  cause  of  proceeding  against  the  vessel,  the  judge  states  "that 
not  even  the  most  distant  allusion  is  made  by  the  seamen,  whose 
names  are  affixed  to  that  paper,  that  the  vessel  had  been,  or  was  about 
to  be,  engaged  in  the  slave  trade."     Restates  as  his  conclusion,  after 


1 


CONVENTION  WITH   GREAT  BRITAIN. 


89 


)8cl,  and 
'crso  cir- 
ifj  in  the 
uittal  on 
lant  and 
nake  full 
question 
to  appear 
there  are 
ntitled  to 
IB,  the  al- 
nust  "on- 

,  that  the 
July  last, 
nal  douht 
ily  proved 
ilcna,  and 
receiving 
tice  of  the 
)osd  that, 
luld  he  al- 
d  upon  an 
cnowledge 
of  her  na- 

)e  the  pro- 
!  therefore 
y  found  in 
ssed." 
le  vessel's 
,per  which 
protesting 
ed  as  the 
ites  "that 
en,  whose 
was  ahout 
sion,  after 


a  full  examination  of  the  testimony  presented,  "that  not  a  single 
article  of  slar  equipment  is  cstahlishcd  against  her;"  that  "the 
evidence  of  the  witnesses  has  literally  produced  nothing  which  can  hy 
possibility  affect  the  character  of  the  vessel ;"  that  "  no  indication  has 
heen  adduced,  showing  the  vessel's  employment  in  the  slave  trade, 
and  that  there  has  not  been  a  single  paper  found,  on  hoard  the  ship 
that  could  warrant  him  in  drawing  such  a  conclusion." 

And  he  further  says  that,  "after  having  carefully  reviewed  the 
grounds  upon  which  sentence  of  restoration  had  been  given  by  him, 
with  a  view  of  discovering,  if  possible,  some  probable  cause  of  skizurb 
as  regards  the  vessel's  alleged  equipment  for  the  slave  trade,  he  never 
saw  a  case  so  free  even  from  suspicion." 

Thus  the  vessel  was  fully  exonerated  by  the  decision  of  the  court  on 
all  the  grounds  on  which  she  was  seized,  and  the  judgment  is  as  clear, 
distinct,  and  explicit  as  words  can  make  it,  that  there  was  no  probable 
CAUSE,  or  ground  of  suspicion  of  the  vessel's  being  concerned  in  the 
slave  trade. 

The  necessary  result  of  this  finding  by  the  court  is,  that  the  vessel 
must  be  discharged;  and  not  only  so,  hut,  the  judgment  being  that 
the  seizure  was  without  probable  cause.  Lieutenant  Littlehales,  and  the 
government  for  which  he  was  acting,  are  left  entirely  unprotected  as 
wrongdoers  and  trespassers  from  the  beginning. 

By  a  most  singular  proceeding,  however,  the  court  has  undertaken 
to  consider  another  charge,  without  the  statute,  and  of  which  it  had 
no  cognizance,  which  was  of  a  personal  character,  against  an  individ- 
ual who  was  not  present,  and  not  against  the  vessel,  and  which, 
whether  well  or  ill  founded,  could  in  no  manner  avoid  or  alter  the 
judgment  previously  delivered.  Notwithstanding  the  judge  had  fully 
discharged  the  vessel  on  all  grounds  on  which  she  was  seized,  he 
assessed  her  in  costs,  as  he  says,  "for  resistance  of  the  master  to  fair 
inquiry,"  and  for  "his  wilful  misconduct  in  resisting  constituted 
authorities;"  and  it  is  contended  that  the  error  of  the  court,  in  this 
respect,  is  to  overrule  its  decision  in  the  matters  strictly  before  it. 

Now  the  entire  evidence  on  which  this  charge  is  founded  is  before 
us  in  writing,  and  after  full  examination  of  it,  we  express  the  opinion 
with  entire  confidence,  that  it  is  wholly  unsustained  by  testimony. 

But  admitting  it  was  fully  sustained,  and  that  Captain  Gilbert  had 
forcibly  resisted  British  authorities,  so  that  he  had  heen  capitally 


90 


ADJUSTMENT  OF  CLAIMS  UNDER  THB 


liable  for  an  offence  of  that  description  ;  it  would  have  made  no  dif- 
ference an  to  the  decision,  or  liability  of  this  vessel  as  to  other  matters 
charged  against  it. 

If  the  vessel  is  exonerated  and  cleared  from  all  suspicion  of  offence, 
the  haHty  or  wilful  misconduct  of  the  master,  in  resisting  a  British 
armed  force,  has  nothing  to  do  with  the  national  character  of  the 
vessel,  or  her  being  engaged  in  the  slave  trade. 

He  might  have  resisted  the  more  obstinately  for  the  very  reason 
tliat  he  knew  his  vessel  was  clear  of  all  probable  cause  of  charge,  and 
because  he  believed  its  seizure  was  an  abuse  of  authority ;  but,  on 
whatever  ground  he  might  make  such  resistance,  it  would  be  an 
offence  of  which  no  cognizance  could  be  had  except  the  party  was 
specificiilly  arraigned,  and  on  trial  for  that  cause. 

It  is  an  offence  also  for  which  a  trial  could  only  be  had  at  St. 
Helena,  where  the  acts  complained  of  were  committed,  and  before  a 
jury  of  the  country. 

No  provision  of  the  statute,  or  any  principle  of  common  law,  gives 
authority  to  the  court  to  assess  a  vessel  in  costs,  when  discharged 
from  all  legal  ground  of  seizure  and  probable  cause  of  offence.  The 
court  might,  for  proper  cause,  have  omitted  to  tax  costs  against  the 
captors,  but  this  is  the  utmost  extent  of  any  discretionary  power, 
vested  in  them  in  such  case. 

In  statutes  where  the  delivery  of  papers  is  an  imperative  duty,  as 
in  the  seamen's  act  of  7  and  8  Fie,  ch.  112,  sec.  56;  where  the  master 
of  a  vessel  is  required  to  produce  certain  papers  to  the  consul,  a  refusal 
to  deliver  them  is  a  distinct  offence,  and  is  punishable  under  a  penalty 
of  £20.     Here  there  is  no  requirement  to  deliver  papers. 

An  assessment  of  costs  against  the  vessel  clearly  could  not  be  made 
under  the  2  and  3  Vic,  as  that  statute  provides  that,  "no  court  shall 
proceed  to  condemn  any  vessel,"  (and  if  so,  it  cannot  assess  her  in 
costs,)  "where  the  owners  shall  establish,  to  the  satisfaction  of  the 
court,  that  they  are  entitled  to  claim  the  protection  of  the  flag  of  a 
State  other  th^i  Great  Britain  or  Portugal."  And  this  provision 
further  shows  that  the  act  of  2  and  3  Vic.  was  intended  to  apply 
merely  on  the  high  seas,  and  that,  in  harbor,  the  only  act  justifying 
the  seizure  of  a  vessel  engaged  in  the  slave  trade  is  5  Geo.  IV. 

The  case  then  shows  that  Lieutenant  Littlehales  stands  condemned, 
by  a  court  of  his  own  choosing,  on  a  wholly  ex  parte  examination, 


OONVBNTION   WITH  OBBAT  BRITAIH. 


91 


kde  no  dif- 
er  matters 

of  offence, 

a  British 

cter  of  the 

'ery  reason 
harge,  and 
y ;  but,  on 
luUl  be  an 
I  party  was 

had  at  St. 
nd  before  a 

I  law,  gives 
discharged 
"ence.  The 
against  the 
aary  power 

Ive  duty,  as 

the  master 

111,  a  refusal 

3r  a  penalty 

lot  be  made 
court  shall 
sess  her  in 
jtion  of  the 
le  flag  of  a 
is  provision 
id  to  apply 
t  justifying 
IV. 

3ondemned, 
:amination, 


and  by  a  judgment  unimpeachod,  of  the  seizure  of  a  vessel  having  an 
establiHliod  national  character,  and  against  which  there  was  no  pro- 
bable ground  of  charge  of  her  being  concerned  in  the  slave  trade. 
Such  being  the  case,  it  is  clear  that  the  ])arty  offending  is  directly 
responsible  to  the  owners  of  the- vessel.  No  obligation  reHted  on  the 
owners  to  follow  their  property  to  a  remote  jurisdiction,  to  rescue  it 
from  the  control  of  law  thus  unwarrantably  asserted. 

No  principle  of  common  law  is  plainer,  than  that  trespassers  and 
wrongdoers,  ah  initio,  in  the  seizing  and  removal  of  property,  are  at 
once  personally  liable,  and  it  rests  not  in  their  mouths  to  say  that  the 
party  aggrieved  should  not  prosecute  them,  but  must  follow  the  pro- 
perty and  abide  the  result  of  the  legal  proceedings  instituted  against 
it.  With  much  more  propriety  might  the  owners  of  the  Jones  have 
said  that  Lieutenant  Littlehales,  after  the  discharge  of  the  vesHcl,  in- 
stead of  instituting  an  appeal  from  the  decision  of  the  court,  which  he 
never  j)rosecuted,  should  have  at  once  returned  the  vessel  to  America, 
and  made  ample  indemnity  to  the  owners  for  all  costs  and  damages  for 
its  illegal  seizure  and  detention. 

For  the  seizure  of  a  vessel  without  probable  cause,  the  legal  rule  of 
damage  is  full  restitution  and  compensation  for  all  costs  and  injury 
sustained. 

We  hold,  for  the  reasons  thus  set  forth,  that  the  following  points 
are  sustained : 

I.  The  not  having  ship's  papers  is  not  an  offence  under  2  and  3  Vic. , 
and  is  of  no  consequence  in  any  way  except  as  secondary  and  subsidiary 
to  the  charge  of  being  engaged  in  the  slave  trade. 

II.  Where  no  probable  cause,  or  ground  of  suspicion  exists,  of 
being  concerned  in  the  slave  trade,  no  right  of  entry  upon,  or  seizure 
of  any  vessel  exists,  either  by  2  and  3  Fi'c,  or  by  5  Geo.  IV;  and  who- 
ever enters  upon  or  seizes  such  vessel  is  a  wrongdoer  from  the  begin- 
ning. 

III.  In  case  of  entry  upon  or  seizure  of  a  vessel  under  such  cir- 
cumstances, the  owner  is  not  bound  to  follow  the  property  and  take 
an  appeal  from  any  proceedings  of  the  party,  but  he  has,  at  once,  a 
remedy  on  the  wrongdoer,  or  his  aiders  and  abettors,  if  he  so  elects. 

IV.  Where  a  vessel  has  been  seized,  on  a  charge  of  being  concerned 
in  the  slave  trade,  and  is  acquitted  from  all  grounds  of  probable  cause 
of  being  concerned  in  such  o£fence,  the  court  cannot  impose  costs 


92 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


against  the  vessel  "for  resistance  of  the  master  to  constituted 
authorities"  in  seizing  the  vessel;  hut  it  is  a  personal  and  distinct 
ground  of  offence,  that  must  he  separately  prosecuted.  Further,  it 
cannot  assess  costs  against  the  vessel  in  any  case  when  discharged 
from  all  prohahle  cause  or  ouspicion*of  the  offence  for  which  it  was 
seized. 

V.  Where  a  vessel  is  seized  in  harhor  and  is  suhject  there  in  all 
respects  to  the  jurisdiction  of  competent  authorities  for  the  punishment 
of  the  offence  charged  against  her,  the  removal  of  such  vessel  to  a  re- 
mote and  distant  jurisdiction  for  trial,  even  though  it  may  he  done 
under  the  form  of  law,  is  an  unjust  and  oppressive  act,  in  violation  of 
the  spirit  of  British  institutions. 

VI.  The  lowest  rule  of  damages  for  the  seizure  of  a  vessel  without 
prohahle  cause,  or  color  of  right,  is  full  compensation  for  all  injury 
incurred. 

Having  arrived  at  these  results,  it  would  he  unnecessary  to  go 
further  were  it  not  for  the  exaggerated  and  erroneous  statements  that 
have  heen  made  as  to  opposition  "to  constituted  authorities;"  and  the 
attempt  to  palliate  and  excuse  the  conduct  of  Lieutenant  Littlehales, 
to  the  prejudice  of  the  fair  consideration  of  this  case,  and  the  just 
rights  of  the  parties. 

We  go  into  the  consideration  of  this  matter  with  great  reluctance 
for  the  reason  of  the  time  it  must  consume,  and  that  it  is  wholly 
irrelevant  to  tlie  projjcr  issue  hetween  the  parties ;  hut  so  much  pro- 
minence has  heen  given  to  it  in  the  correspondence  relative  to  this 
claim,  and  the  evidence  upon  it  has  been  so  imperfectly  understood, 
that  we  deem  it  our  duty  to  look  into  the  facts,  to  see  how  far  any 
charge  of  tlie  kind  is  home  out  by  the  testimony,  and  to  determine 
whetlier  any  justification  or  mitigation  of  the  circumstances  of  the 
seizure  of  the  vessel  can  he  drawn  from  it. 

We  will  first  state  the  charges  made  as  to  ''resistance  to  constituted 
authorities,"  and  then  compare  these  charges  with  the  evidence  on 
the  8ul)ject. 

Before  doing  this,  however,  we  would  state  the  facts  relative  to  the 
arrival  and  position  of  the  Jones  in  the  harhor  of  St.  Helena,  and 
the  laws  of  the  two  countries  applicable  to  the  custody  of  her  papers 
while  in  port.  We  have  already  stated  the  decision  of  the  court  that 
there  was  no  probable  ground  of  charge  against  the  Jones,  of  being 


I 


■ 


m 


CONVENTION  WITH   GREAT  BRITAIN. 


93 


onstituted 
id  distinct 
•"urther,  it 
discharged 
lich  it  was 

here  in  all 
unishment 
sel  to  a  re- 
ay  be  done 
iriolation  of 

sel  without 
•  all  injury 

;sary  to  go 
jments  that 
s;"  and  the 
Littlehales, 
nd  the  just 

t  reluctance 
t  is  wholly 
much  pro- 
tive  to  this 
understood, 
low  far  any 
0  determine 
tices  of  the 

constituted 
evidence  on 

ative  to  the 
lelcna,  and 
her  papers 
e  court  that 
es,  of  being 


concerned  in  the  slave  trade ;  and  we  may  here  add  the  sworn  testi- 
mony of  Mr.  Frye,  "  that  he  had  been  a  member  of  the  firm  of  Farn- 
ham  &  Co.  for  twenty  years,  ind  that  he  had  neither  directly  nor 
indirectlv  been  concerned  in  the  slave  trade;  nor,  according  to  the 
best  of  his  knowledge  and  belief,  had  Mr.  Farnham,  or  any  other 
partner,  ever  been  concerned  in  the  slave  trade ;  and  tliat  the  barque 
Jones  was  fitted  out  solely  for  carrying  on  a  legitimate  trade,  and  with- 
out the  slightest  intention  or  remotest  design,  either  directly  or  indi- 
rectly, of  engaging  in  the  slave  trade." 

The  Jones,  as  previously  appears,  cleared  from  Boston  in  March, 
1840,  and  proceeded  with  a  valuable  cargo  of  assorted  merchandise 
for  the  western  coast  of  Africa.  After  trading  at  different  places  along 
that  coast,  and  exchanging  a  considerable  portion  of  the  original  cargo 
for  African  products,  it  left  for  the  island  of  St.  Helena,  where  it 
arrived  on  the  24th  of  August. 

Immediately  on  her  arrival.  Captain  Gilbert,  as  is  shown  by  his 
testimony  and  that  of  the  supercargo,  "■  caused  the  vessel  to  be  entered 
at  the  custom-house,  and  handed  in  there  a  manifest  of  articles  in- 
tended for  sale  at  St.  Helena.  He  then  proceeded  to  the  United 
States  consulate,  and  there  deposited  the  register  of  the  vessel,  ship's 
articles,  list  of  crew,  manifest  of  outward  cargo  from  Boston,  and  bill 
of  health  also  from  Boston." 

The  laws  of  Great  Britain,  see  act  3  &  4  Will.  IV,  ch.  52,  require 
that  "the  commander  of  every  vessel  arriving  from  ports  beyond  seas, 
at  any  port  in  the  United  Kingdom,  shall,  within  twenty-four  hours 
from  his  arrival,  make  due  report  of  his  ship,  and  shall  make  and 
subscribe  a  declaration  to  the  truth  of  the  same  before  the  collector  or 
comptroller  of  the  port,  and  such  report  shall  contain  an  account  of 
the  particular  marks,  numbers  and  contents  of  all  the  different  pack- 
ages or  parcels  of  goods  on  board  such  ship,  and  of  the  place  or  places 
where  such  goods  were  respectively  taken  on  board,  and  of  the  bur- 
den of  such  ship ;  the  country  v/here  it  was  built  and  belongs ;  the 
name  of  the  master  and  the  number  of  seamen,  stating  how  many 
are  subjects  of  the  country  to  which  the  ship  belongs,  and  how  many 
are  subjects  of  some  other  country."  Similar  regulations  are  believed 
to  exist  as  to  all  colonial  ports.  It  is  further  lawful  and  customary 
for  agents  of  the  collector  to  board  all  ships  coming  within  their 
jurisdiction,  and  remain  on  board  them  until  the  goods  have  been 


''\k 


94 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


delivered  from  them.     They  are  at  all  times  while  in  port  strictly 
under  the  watch  and  guard  of  the  collector. 

It  is  made  the  imperative  duty  also  of  the  collector  of  customs,  com- 
manders of  forts,  governors  of  colonies,  &c.,to  guard  against  and 
prosecute  for  all  violations,  within  their  jurisdiction,  of  the  laws  pro- 
hibiting the  slave  trade. 

The  laws  of  the  United  States,  passed  February  28,  1803,  in  rela- 
tion to  commercial  agents  or  consuls,  provide  ''that  every  master  of 
an  American  vessel,  immediately  upon  his  arrival  at  a  foreign  port,  shall 
deposit  his  register,  sea  letter,  and  Mediterranean  passport  with  the 
American  consul,  or  commercial  agent,  at  such  port,  under  penalty  of 
five  hundred  dollars,  which  the  consul  may  recover  in  his  own  name 
for  the  use  of  the  United  States." 

These  papers  are  required  by  statute  to  remain  in  the  hands  of  the 
consul  until  the  master  has  exhibited  to  the  consul  his  clearance  from 
port.  The  consul  is  also  required  to  enter  on  his  consulate  records 
the  time  of  the  receipt  and  delivery  of  these  papers. 

Provisions  of  a  similar  character  are  believed  to  be  universal  as  to 
the  power  and  duties  of  the  consuls  of  all  nations. 

These  laws  had  been  fully  complied  with,  as  we  have  already  shown, 
by  the  deposit  of  the  proper  papers  of  the  vessel  at  these  offices. 

It  should  be  further  understood  that  these  requirements,  as  to  ship's 
papers,  are  of  such  public  character  and  notoriety,  that  no  master  of  an 
armed  vessel  in  her  Majesty's  service,  who,  from  his  position,  is  ne- 
cessarily familiar  with  the  ordinary  details  of  commercial  intercourse 
between  nations,  can  be  supposed  to  be  ignorant  of  them. 

The  vessel  was  thus  duly  entered  in  port,  and  had  remained  there 
twenty-one  days,  from  the  24th  of  August  to  the  14th  of  September,  as 
appears  by  the  decision  of  the  court,  "unmolested,  having  during  that 
time  discharged  a  large  quantity  of  flour,  biscuit,  and  other  articles, 
and  shipped  thirty-nine  bales  of  goods  from  the  town,"  when,  late  on 
Saturday  afternoon,  Lieut.  Littlehales  met  Capt.  Gilbert,  the  master 
of  the  Jones,  in  the  street  in  St.  Helena,  and  demanded  of  him  the  ship's 
papers,  and  the  charge  of  "wilful  misconduct  and  illegal  opposition  to 
constituted  authorities"  arises  out  of  a  refusal,  as  it  is  said,  to  produce 
the  ship's  papers  at  that  time,  and  a  refusal,  on  subsequent  demand 
made  soon  after,  the  same  evening,  on  board  the  vessel.  No  other 
demand  for  these  papers  was  ever  at  any  time  made. 


CONVENTION  WITH  GREAT  BRITAIN. 


95 


jrt  strictly 

itoms,  com- 
gainst  and 
le  laws  pro- 

;03,  in  rela- 
•y  master  of 
Q  port,  shall 
»rt  with  the 
r  penalty  of 
8  own  name 

lands  of  the 
!arance  from 
date  records 

iversal  as  to 

■eady  shown, 
ffices. 

as  to  ship's 
master  of  an 
jition,  is  ne- 
1  intercourse 

nained  there 
eptemher,  as 
during  that 
her  articles, 
hen,  late  on 
the  master 
lim  the  sAip's 
opposition  to 
d,  to  produce 
lent  demand 
No  other 


Having  stated  these  facts,  we  will  now  proceed,  as  we  hefore  proposed, 
to  specify  the  charges  as  to  the  resistance  complained  of,  and  compare 
these  charges  with  the  evidence  on  the  suhject. 

The  court  states:  "that  the  resistance  of  the  master  of  the  Jones  to 
fair  inquiry,  in  having  refused  to  produce  his  papers  for  inspection  to 
the  commander  of  the  Dolphin,  prohahly  led  to  the  seizure  of  the  Jones," 
and  this  refusal  he  designates  as  "wilful  misconduct  and  illegal  op- 
position to  constituted  authorities." 

Lord  Palmerston,  in  his  letter  to  Mr.  Bancroft  of  Dec,  9,  1847, 
represents  the  testimony  on  this  suhject  in  this  manner.  He  says  that 
Mr.  Littlehales  having  met  Mr.  Gilbert  in  the  street,  requested  to  see 
his  ship's  papers,  and  Mr.  Gilbert  "refused  to  produce  them,"  and 
that  Mr.  Murray  afterwards  asked  him  for  his  papers  on  board  the  ves- 
sel, and  Mr.  Gilbert  "again  positively  refused  to  produce  them,  and 
said  they  were  in  possession  of  Mr.  Carroll."  Lord  Palmerston  then  says 
that  Mr.  Littlehales,  "on  learning  this/'  went  to  Mr.  CarroH's  office, 
and  there  requested  the  production  of  the  papers  in  the  presence  of 
Messrs.  Murray  and  Rowe,  officers  of  the  Dolphin,  Mr.  Pike,  admiralty 
passenger,  and  Mr.  Carroll;  and  that,  on  this  occasion,  as  he  had  done 
before,  Lieut.  Littlehales  disclaimed  any  right  to  call  for  the  papers 
on  shore,  but  said  he  had  that  right  afloat,  and  it  might  be  a  conveni- 
ence to  both  parties  to  have  the  papers  shown  to  him  at  once,  but  Mr. 
Gilbert  however  pertinaciously  and  peremptorily  refused  to  show  tJiem. 

Such  are  the  allegations  and  conclusions  at  which  Lord  Palmerston 
arrives.  On  examining  the  testimony,  however,  in  the  case,  it  will  be 
found  that  the  third  meeting,  represented  by  Lord  Palmerston  to  have 
taken  place,  never  occurred.  It  is  a  mere  repetition,  doubtless  by  mis- 
take, of  the  first  meeting,  only,  in  the  repetition,  the  facts  are  stated 
as  taking  place  after  the  demand  for  the  papers  on  board  the  vessel 
was  made,  and  after  Mr.  Gilbert's  reply  that  the  papers  were  in  the 
possession  of  Mr.  Carroll,  when,  "on  learning  this,"  as  Lord  Palmer- 
ston says,  Lieut.  Littlehales  went  to  31r.  Carroll's  office,  and  there 
requested  the  papers.  So  that  the  third  repetition  of  this  statement, 
the  particular  cause,  or  occasion  on  which  the  demand  was  made,  and 
the  place  of  making  it,  are  all  without  foundation  in  fact. 

We  have  no  belief  that  this  error  was  designed,  but  we  allude  to  it 
merely  as  an  instance  of  the  hasty  and  inconsiderate  manner  in  which 
this  case  has  been  examined  and  conclusions  have  been  arrived  at. 


t 


^im 


■a^- 


:.<¥^ 


96 


ADJUSTMENT  OP  CLAIMS  UNDER   THE 


But  this  is  not  all ;  the  assertion  that  Capt.  Gilbert  refused  to  show 
his  papers,  at  any  time,  is  not  sustained  by  the  evidence.  The  only 
pretence  pointed  out  by  Lieut.  Littlehales,  as  constituting  a  refusal  to 
show  his  papers,  is  that  Capt.  Gilbert,  on  the  first  demand  for  the  pa- 
pers, in  the  street,  stated,  in  his  testimony,  that  the  papers  were  at  the 
custom-house,  and  on  a  second  demand  made  on  board  the  vessel,  by 
Mr.  Murray,  he  said  they  were  at  the  consul's  office. 

Lieutenant  Littlehale's  quotation,  however,  from  the  testimony  of 
Captain  Gilbert  is  not  correct.  He  does  not  say  in  his  testimony  that 
the  papers,  on  the  first  demand  in  the  street,  were  at  the  custom- 
house, but  he  says  he  was  asked  for  his  manifest,  and  he  stated  the 
manifest  was  at  the  custom-house,  and  afterwards,  when  asked  for  his 
papers  on  board  his  vessel  by  Mr.  Murray,  he  said  his  papers  were  at 
the  consul's  house.  Both  of  which  statements  were  correct.  But 
taking  the  statements  precisely  as  Lieutenant  Littlehales  chooses  to 
represent  them,  ttiey  are  entirely  difi'erent  from  a  refusal  to  show  his 
papers. 

Waiving  all  right  and  propriety  of  Lieutenant  Littlehales  making 
a  demand  in  the  street,  where  he  admits  he  had  no  authority  to  make 
it,  and  his  refusal  to  assign  any  reason  why  he  demanded  the  papers, 
which  he  clearly  should  have  done,  to  entitle  him  to  a  reply  any- 
where, the  answer  of  Captain  Gilbert,  on  both  these  occasions  as- 
signing H  reason  why  he  could  not  produce  his  papers,  is  not  a  refusal 
to  deliver  them. 

Satisfactory  papers  as  to  the  character  of  the  vessel  were  at  both  the 
places  named,  and  there  is  no  such  contradiction  in  the  statements  as 
shows  any  design  to  vary  from  the  literal  truth  in  the  case,  or  in  the 
east  degree  to  embarrass  the  proceedings  of  Lieutenant  Littlehales. 
But  the  testimony  of  Captain  Gilbert  does  not  terminate  here.  Lieu- 
tenant Littlehales  chooses  to  call  his  reply  thus  far  a  refusal,  because 
the  papers  were  not  delivered  on  the  spot,  and  therefore  he  pursues 
his  testimony  no  further.  Captain  Gilbert,  however,  when  demand 
was  made  of  him  for  the  papers  on  board  the  vessel,  by  Mr.  Murray, 
which  is  the  only  place  where  it  is  pretended  a  proper  demand  was 
made,  not  only  stated  to  him  that  the  papers  were  in  the  hands  of 
Mr.  Crroll,  the  United  States  consul,  but  he  further  told  Mr.  Murray, 
"  it  was  then  late  on  Saturday  night,  and  the  next  day,  being  Sunday, 
there  would  be  no  business  done,  but  on  Monday  he  would  show  him 


^ 


CONVENTION   WITH   GREAT  BRITAIN. 


97 


i  to  stow 
The  only 
refusal  to 
or  the  pa- 
irere  at  the 
vessel,  by 

stimony  of 
imony  that 
lie  custom- 
3  stated  the 
sked  for  his 
)er8  were  at 
rrect.     But 
J  chooses  to 
to  show  his 

ales  making 
rity  to  make 
1  the  papers, 
a  reply  any- 
(ccasions  as- 
not  a  refusal 

le  at  both  the 
itatemcnts  as 
,se,  or  in  the 
Littlehales. 
Ihere.    Lien- 
[usal,  because 
•e  he  pursues 
rhen  demand 
JMr.  Murray, 
demand  was 
the  hands  of 
Mr.  Murray, 
[eing  Sunday, 
lid  show  him 


5^' 
1 


all  his  papers,  and  give  him  every  satisfaction  as  to  his  voyage  and 
cargo."  So  that  there  was  not  only  no  refusal  to  deliver  tlie  papers, 
but  a  promise  to  produce  them  at  the  earliest  possible  moment  on 
Monday. 

Captain  Gilbert  also  states  that  "  at  eight  o'clock  on  Monday 
morning,  he  took  a  boat,  and  attempted  to  go  on  board  his  vessel, 
and  was  warned  off  and  refused  admittance.      Tliat  be  immediately 
afterwards  went  to  the  office  of  the  consul,  took  bis  papers,  and  pro- 
ceeded with  the  supercargo  in  a  boat  towards  the  vessel,  but  was 
again  warned  off,  and  threatened  to  be  fired  into  if  he  approached  any 
nearer.     So  that  the  promise  was  not  only  made  to  produce  the  papers, 
but  Captain  Gilbert  did  all  in  his  power  to  carry  this  promise  promptly 
into  effect,  and  was  prevented  from  doing  it  only  by  threats  of  violence ; 
and  this  statement  does  not  rest  on  the  testimony  of  Captain  Gilbert 
alone,  but  he  is  fully  sustained  in  these  facts  by  the  testimony  of  three 
other  witnesses. 

Captain  Gilbert  further  states  that  the  same  morning,  in  conse- 
quence of  these  extraordinary  and  harsh  proceedings,  he  made  com- 
plaint to  Mr.  Carroll,  the  consular  agent  of  the  United  States,  repre- 
senting to  him  these  facts,  and  that  Mr.  Carroll  addressed  a  letter  to 
Lieutenant  Littlehales  on  the  subject,  which  Lieutenant  Littlehales 
declined  receiving,  stating  that  he  did  not  recognize  him  as  consul. 
Captain  Gilbert  then  immediately  wrote  to  Lieutenant  Littlehales  him- 
self, but  he  made  him  no  reply. 

He  also,  on  the  same  day,  on  Monday,  in  company  with  Mr.  Carroll 
and  the  supercargo  of  the  vessel,  called  on  the  collector  of  the  port, 
and  exhibited  to  the  collector  the  register  of  the  Jones,  the  manifest 
of  outward  cargo  from  Boston,  clearance,  bill  of  health,  and  list  of 
crew  from  Boston,  and  ship's  articles  executed  in  Boston,  and  offered 
to  give  any  and  every  information  in  his  power  relating  to  the  barque 
Jones. 

Captain  Gilbert  testifies  that  the  collector  examined  all  these  papers 
carefully,  and  said  he  was  perfectly  satisfied  the  Jones  was  on  a  legal 
voyage,  and  that  he  Avould  do  all  in  his  power  to  have  the  vessel  re- 
leased ;  and  he  immediately  wrote  to  the  commander  of  the  Dolphin, 
asking  the  reason  of  his  conduct,  and  received  no  answer  that  day,  as 
the  collector  told  him ;  and  he  wrote  again  the  next  day,  and  in  the 
afternoon  received  a  few  lines  from  the  commander,  in  which  ho  gave 

1 


m 


98 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


■* 


c 


him  no  satisfactory  answer,  and  assigned  no  reason  for  what  he  had 
done,  and  the  collector  then  said  he  could  do  nothing  more. 

These  facts  are  in  no  manner  contested.  Lieutenant  Littlehales, 
indeed,  says,  in  reply  to  this  statement :  "  I  received  or  held  no  com- 
munication with  the  collector  of  her  Majesty's  customs,  after  having 
informed  that  gentleman,  in  the  early  part  of  the  seizure  of  the  barque's 
detention."  No  one  alleges  that  he  held  communication  with  the 
collector,  after  giving  him  this  information  ;  but  he  had  given  no 
information  of  tlie  seizure  to  the  collector  till  after  the  papers  had  first 
been  shown  to  the  collector  by  Captain  Gilbert,  and  the  collector  had 
written  to  Lieutenant  Littlehales  fully  on  the  subject.  He  then  wrote 
a  brief  line  to  the  collector,  as  Captain  Gilbert  says  he  did,  and  this 
is  the  communication  had  by  Lieutenant  Littlehales  with  the  collector, 
"  in  the  early  j^art  of  the  seizure,"  to  which  he  refers. 

Captain  Gilbert  then  addresses  the  governor  of  the  island,  asking 
his  interference  and  protection,  and  Mr.  Carroll  also  wrote  a  letter  to 
the  colonial  secretary  to  the  same  purport.  Every  possible  effort  was 
thus  put  forth,  down  to  the  time  the  Jones  was  taken  away  to  Sierra 
Leone,  to  communicate  the  facts  in  relation  to  the  vessel. 

To  the  lines  written  to  the  governor  and  secretary,  replies  were  re- 
ceived, after  the  barque  left,  that  they  had  no  control  over  her  Ma- 
jesty's naval  officer. 

The  vessel  was  removed  without  giving  to  Captain  Gilbert  any 
information  as  to  the  charges  against  her,  or  any  notice  where  she  was 
to  be  taken. 

Lieutenant  Littlehales  attempts  to  avoid  portions  of  this  statement, 
by  saying  that  Captain  Gilbert  "did  not  offer  to  show  him  his  papers 
at  any  one  time."  But  Captain  Gilbert  does  not  so  say.  He  states 
that  he  proceeded  to  his  vessel,  and  when  Mr.  Murray,  who  had  charge 
of  her,  by  command  of  Lieutenant  Littlehales,  demanded  his  papers, 
he  told  him  they  were  at  Mr.  Carroll's,  but  he  would  produce  them 
on  Monday,  and  on  Monday,  when  he  attempted  to  do  it,  he  was  pre- 
vented by  being  warned  off,  and  by  threats.  « 

Lieutenant  Littlehales  further  says,  "that  no  threats  of  vijlence 
were  used  by  persons  on  board  the  barque;"  but  he  was  not  present, 
and  (jould  have  no  knowledge  on  the  subject.  He  is  also  contradicted 
by  five  witnesses  on  this  point. 

Such  is  a  plain  statement  of  the  facts  relative  to  this  transaction. 


CONVENTION  WITH   GREAT  BRITAIN. 


•9 


We  have  given  it  a  careful  examination,  and  are  wholly  at  a  loss  to 
say  what  course  of  conduct  could  have  heen  pursued  hy  Captain  Gilbert 
that  would  have  been  more  proper,  or  in  what  respect  he  has  failed  in 
his  duty  in  any  particular.  There  is  clearly  no  ground  for  the  charge 
that  he  was  guilty  of  "a  pertinacious  and  peremptory  refusal  to  pro- 
duce the  ship's  papers,"  or  "of  wilful  misconduct^  and  illegal  oppo- 
sition to  constituted  authorities."  ,^ 

It  would  have  heen  a  great  gratification  to  me,  and  certainly  highly 
important,  in  an  international  point  of  view,  if  the  court  of  Sierra 
Leone,  and  Lords  Palmerston  and  Aberdeen,  who  give  this  construc- 
tion to  Captain  Gilbert's  conduct,  had  specified  what  answer  the  cap- 
tain of  an  American  merchant  vessel  in  port  should  make  to  her 
Majesty's  cruiser,  where  his  vessel  has  been  regularly  entered,  and 
her  papers  are  at  the  custom-house  and  at  the  consul's,  as  they  are 
required  by  law  to  be. 

What  more  the  captain  of  such  a  vessel  can  do  than  to  say  that  his 
papers  are  at  these  offices,  and  that  he  will  produce  them  at  the  earliest 
possible  moment,  and  carrying  out  this  promise  promptly  by  his  acts, 
I  don't  know  ;  or  how  such  a  reply  can  constitute  a  legal  justification 
for  the  seizure  of  the  vessel  of  a  friendly  nation,  breaking  up  her 
voyage,  dispersing  her  crew,  removing  her  to  a  jurisdiction  a  thou- 
sand miles  from  her  course,  and  assessing  her  in  the  costs  of  seizure, 
though  most  honorably  acquitted,  by  a  British  court,  from  "all  pro- 
bable cause,  or  suspicion  of  any  offence,"  except  the  proper  answer  to 
constituted  authorities. 

While  I  thus  consider  the  conduct  of  Captain  Gilbert  as  free  from 
blame,  and  the  decision  of  the  court  in  this  respect  as  wholly  erroneous, 
the  conduct  of  Lieutenant  Littlehales  impresses  me  in  a  different  light. 

A  controversy  had  arisen  between  Captain  Gilbert  and  his  men  as 
to  the  legal  effect  of  their  shipping  articles.  This  had  been  settled, 
after  a  full  hearing,  by  the  United  States  consular  agent,  at  St.  Helena, 
who  had  full  power,  by  the  laws  of  the  United  States,  to  adjust  such 
controversy,  in  the  same  manner  that  British  consular  agents  have, 
by  law,  to  adjust  such  controversies  between  British  masters  and 
seamen.  Notwithstanding  this  decision,  Lieutenant  Littlehales  in- 
terposed in  the  matter,  "these  seamen  having  come  to  him,"  as  he 
says,  "for  protection  and  assistance,  the  same  having  been  denied  ^ 
them  by  Mr.  Carroll."    So  that,  in  the  outset,.  Lieutenant  Littlehales 


100 


ADJUSTMENT   OP  CLAIMS   UNDER   THE 


'«! 


IT 


not  only  claims  cognizance  and  control  over  Captain  Gilbert  and  his 
venscl,  hut  over  the  proceedings  of  the  United  States  consular  agent. 

Having  thns  embarked  in  this  business,  and  seized  the  vessel  while 
in  port,  because  on  demand  for  her  papers  they  were  not  delivered 
at  once  on  the  spot  he  chooses  to  consider  it  an  absolute  and  wilful 
refusal  to  exhibit  them ;  he  prohibits  all  access  of  Captain  Gilbert  to 
^  the  vessel ;  refuses  to  receive  any  explanation  from  him  or  his  friends, 
or  to  give  any  information  as  to  his  grounds  for  seizing  the  vessel,  or 
the  course  he  designed  to  pursue  in  relation  tuber.  Tliese  acts  furnish 
to  us  no  favorable  example  of  oflicial  conduct  or  character. 

Mr.  Carroll  was  appointed  as  consul  of  the  United  States,  and  was 
recognized  as  such  on  the  loth  of  February,  1833,  by  the  court  of 
directors  of  the  East  India  Company,  who  were  at  that  time  competent 
agents  for  that  purpose  imder  the  British  government,  and  held  the 
island  of  St.  Helena  as  a  portion  of  their  territories.  From  that 
period  for  seven  years,  up  to  the  time  of  the  seizure  of  the  Jones,  he 
had  been  uniformly  recognized  and  treated  as  consul  by  the  British 
authorities.  \ 

A  British  consul,  by  the  regulations  of  the  British  government,  is 
an  officer  who  would  out-rank  Lieutenant  Littlehales,  and  on  whom 
he  is  required  to  wait  immediately  on  arriving  in  port.  An  American 
consul  holds  a  similar  ])osition  as  regards  American  officers.  Com- 
mon courtesy  would  require  that  Lieutenant  Littlehales  should  have 
received  from  any  individual  of  respectable  character  such  communi- 
cation as  Captain  Gilbert  desired  to  make  as  to  his  vessel;  liut  not- 
withstanding Mr.  Carroll  was  entitled  to  consideration  in  every  respect 
as  a  man  and  as  a  British  citizen,  as  well  as  from  his  position  of  hold- 
ing an  appointment  from  the  United  States,  his  letter  on  this  occasion 
was  returned  unopened,  and  all  aid  from  him  was  denied  by  Lieu- 
tenant Littlehales. 

Captain  Gilbert  seems  to  have  been  very  unfortunately  situated. 
When  called  upon  for  his  papers,  his  precise  form  of  reply,  though  he 
oiFers  to  produce  them  at  the  earliest  i)oHHible  moment,  is  regarded  as 
opposition  to  authorities;  if  he  goes  to  his  vessel  to  deliver  his  papers, 
he  is  threatened  to  be  shot  at ;  if  he  writes  a  letter  to  Lieutenant 
Littlehales,  he  receives  no  answer ;  if  he  gets  the  American  consul  to 
write  for  him,  his  letter  is  returned  unopened,  because,  though  pre- 
viously acknowledged  by  competent  British  authorities  for  seven 


-.^itt: 


..^ 


CONVENTION   WITH   GREAt   BRITAIN. 


101 


jrt  and  his 
liar  agent. 
>8sel  while 
;  delivered 
and  wilful 
,  Gilbert  to 
his  friends, 
e  vessel,  or 
acts  furnish 

es,  and  was 
he  court  of 
e  competent 
nd  held  the 

From  that 
le  Jones,  he 

the  British 


vcrnment,  is 
id  on  whom 
n  American 
iccrs.     Com- 
should  have 
sh  communi- 
sel ;  l>nt  not- 
every  respect 
ition  of  hold- 
this  occasion 
lied  by  Lieu- 

tely  situated. 
y,  though  he 
s  regarded  as 
rer  his  papers, 
to  Lieutenant 
ican  consul  to 
!,  though  pre- 
ies  for  seven 


years,  it  is  now  said  he  has  no  exequatur;  if  he  gets  the  collector  of 
customs  to  write,  Lieutenant  Littlehales  tells  him  he  has  sei/od  the 
vessel,  and  tlie  collector  says  ho  can  go  no  further;  if  he  ait|)lie8  to 
the  governor  and  secretary,  he  is  inforn>ed  they  have  no  power  over 
the  commander  of  her  Majesty's  armed  vessel ;  if  he  applies,  as  a  last 
resort,  to  his  government  for  redress,  it  is  held  to  be  an  improper 
appeal  from  the  jurisdiction  of  British  courts,  *' whose  duty  it  was," 
it  is  said  by  Lord  Palmerston,  "if  circumstances  required  it,  to  give 
the  claimant  full  indemnity,"  and  that  Captain  Gilbert  "had  no 
right  to  call  for  the  interposition  of  the  state  to  do  that  which  he 
might,  hy  ordinary  care  and  diliyence,  have  done  for  himself"  through 
the  aid  of  such  tribunals. 

And  this  is  said  when  a  commander  of  her  Majesty's  cruiser  has 
expelled  the  captain  from  his  vessel,  refused  all  specification  of  charge 
against  her,  and  taken  her  away  to  a  coast,  no  one  knew  where,  except 
by  hearsay — tliat  the  captain  of  a  vessel,  imder  such  circumstances, 
not  knowing  where  to  follow  his  vessel,  and  deprived  of  all  means  of  fol- 
lowing it,  might,  "bythe  exercise  of  ordinary  care  and  diligence,"  have 
reached  Sierra  Leone  from  St.  Helena  in  season  to  have  taken  cogni- 
zance of  a  notice  i)osted  up,  for  fourteen  days,  "  on  the  i)ublic  wliarf  of 
Freetown,"  that  the  vessel  would  be  "condemned,  unless  the  owners 
should  ai)pear,  and  show  just  cause  to  the  contrary." 

Such  reproach  addressed  to  Ca])tain  Gilbert,  in  the  distressed  con- 
dition in  which  he  was  left  at  St.  Helena,  would  have  probably  seemed 
to  him  an  unnecessary  addition  to  the  wrongs  already  received  ;  And 
it  seems  to  me  to  be  a  harsh  application  of  the  rule  of  due  diligence' 
in  the  mouth  of  one  who  has  taken  away  from  an  innocent  party  all 
means  of  its  exercise. 

If  the  seizure  of  the  Jones  had  been  made  at  sea,  and  Lieutenant 
Littlehales  had  expelled  Captain  Gilbert  from  the  vessel  on  some  dis- 
tant coast,  the  outrage  would  have  been  too  great  to  have  been  tole- 
rated, but  in  this  case  it  is  practically  as  bad. 

Lieutenant  Littlehales  should  have  promptly  furnished  his  charges 
against  the  vessel,  should  have  been  ready  to  receive,  from  any  re- 
spectable source,  any  and  every  intbrmation  in  relation  to  her.  He 
should  have  notified  Captain  Gilbert  of  his  intention  to  take  the 
vessel  to  Sierra  Leone,  and  furnished  him  the  facilities  of  his  vessel 
to  have  gone  there.  His  conduct  in  all  these  respects  has  been  the 
reverse. 


% 


102 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


But  the  wrongs  to  these  owners  do  not  terminate  here.  When  the 
decision  was  rendered  against  the  captors,  the  ahsurd  charge  of  a 
resistance  to  authorities  was  made  to  prejudice  the  vessel ;  and  an 
appeal  was  also  taken  from  the  decision  of  the  court,  and  bonds  were 
filed. 

The  appeal  was  never  prosecuted.  The  ordinary  eifect  of  an  appeal, 
however,  is  to  hold  custody  of  the  property  seized  for  the  further  term 
of  one  year.  The  hands  of  the  court  are  not^  indeed,  tied  up  by  such 
an  appeal  until  the  service  of  an  inhibition  upon  it,  obtained  from  the 
higher  court ;  but  whether  any  intermediate  steps,  in  the  mean  time, 
shall  be  taken,  depends,  under  the  particular  circumstances  of  the 
case,  on  the  discretion  of  the  court.  The  ordinary  practice,  however, 
is  to  defer  to  an  appeal,  certainly  till  a  reasonable  time  be  had  to  obtain 
an  inhibition,  which  would  have  required  a  number  of  months  in  this 
case  for  the  proper  application  to  the  higher  court.  It  is  an  estab- 
lished principle  also  of  courts  of  admiralty  that,  where  there  is  an 
appeal,  the  property  in  question  cannot  be  withdrawn  but  upon  secu- 
rity given  for  the  value.  The  Woodbridge,  1  Hagg.  76.  Proceedings 
were  thus  stayed,  and  the  case  rendered  still  more  difficult  and  com- 
plicated. 

A  yet  further  wrong  was  done  by  Lieutenant  Littlehales.  The 
regulations  of  the  British  service,  as  we  learn  from  a  letter  of  Lord 
Aberdeen  to  Mr.  Everett,  December  29,  1841,  "  require  all  cruisers, 
under  the  several  acts  for  the  suppression  of  the  slave  trade,  to  enter 
on  tlieir  log-book  all  particulars  relating  to  the  seizure  of  all  vessels 
for  the  violations  of  those  acts,  and  that  a  full  statement  of  these 
particulars  should  be  sent  by  the  first  opportunity  to  England." 

No  such  return  was,  for  a  long  period,  made  by  Lieutenant  Little- 
hales.  The  two  volumes  submitted  to  Parliament,  purporting  to  be 
a  list  of  vessels  detained  and  captured  by  her  Majesty's  cruisers  em- 
ployed for  the  suppression  of  the  slave  trade,  published  succeeding 
this  date,  covering  a  period  of  some  years,  contain  no  report  of  the 
seizure  of  the  Jones.  So  that  Lieutenant  Littlehales  has  failed  in  his 
duty  as  an  officer  of  the  British  government,  in  not  comjilying  with 
orders  important  to  the  interests  of  these  parties  and  to  the  protec- 
tion of  the  commerce  of  the  United  States. 

Lieutenant  Littleliales  had  all  the  means  of  knowledge  before  him 
that  was  subsequently  possessed  by  the  court  of  Sierra  Leone.  He 
was  bound  to  come  to  the  same  just  and  impartial  decision  as  to  the 


I  U 


I 


^ 


CONVENTION   WITH  GREAT  BRITAIN. 


103 


an  appeal, 
irther  term 
up  by  such 
}d  from  the 
mean  time, 
nces  of  the 
B,  however, 
ad  to  obtain 
nths  in  this 
is  an  estab- 
there  is  an 
t  upon  secu- 
Proceedings 
lit  and  com- 

hales.  The 
tter  of  Lord 
all  cruisers, 
ade,  to  enter 
f  all  vessels 
ent  of  these 
md." 

enant  Little- 
orting  to  be 

cruisers  em- 
succeeding 
report  of  the 

failed  in  his 
nplying  with 

o  the  protec- 

;e  before  him 

Leone.     He 

ion  as  to  the 


character  of  the  vessel,  and  the  want  of  all  probable  ground  of  her 
connexion  with  the  slave  trade.  By  his  hasty  and  ill-judged  pro- 
ceedings, and  relying  on  trival  circumstances  and  vague  surmises,  of 
no  weight  to  an  unprejudiced  mind,  contrasted  with  known  facts  be- 
fore him,  he  has  been  guilty  of  a  wrong  against  unoffending  citizens 
of  the  United  States,  that  has  ruined  tlieir  pecuniary  prospects,  and 
has  caused  an  embittered  state  of  feeling  between  the  two  countries  in 
reference  to  his  acts. 

The  course  of  the  British  government,  also,  not  only  in  not  affording 
redress  in  this  matter,  but  in  delaying  prompt  inquiry  and  investiga- 
tion, and  in  not  holding  its  officers  and  tribunals  responsible  for  the 
enforcement  of  their  own  laws  and  rules  important  to  the  protection 
of  American  commerce,  is  a  ground  of  grave  and  serious  complaint  by 
the  parties  in  this  case. 

Both  the  5  Geo.  IF  and  the  2  <f'  3  Vic. ,  as  amended ,  require  the 
vice-admiralty  courts,  on  the  first  Monday  of  January  and  July  of 
each  year,  to  report  to  her  Majesty's  commissioners  of  the  treasury 
all  cases  which  have  been  adjudged  in  the  court  for  the  six  months 
preceding.  These  returns  are  to  give  "  the  date  of  seizure  ;  the  pro- 
perty seized ;  the  name  of  the  seizer  ;  the  sentence,  whether  of  for- 
feiture or  restitution ;  whether  the  proi)erty  has  been  sold  or  converted, 
and  whether  any  jmrt  remains  unsold  ;  and  in  whose  hands  the  pro- 
ceeds remain." 

When  it  has  answered  the  occasion  of  the  British  government  to 
represent  its  regard  for  the  rights  of  American  commerce,  the  pro- 
visions of  law  as  to  immediate  returns,  and  the  particular  and  cautious 
instructions  to  their  cruisers  on  this  subject,  are  pointed  to  as  proof  of 
their  prompt  watchfulness  over  every  invasion  of  the  American  flag. 
But  here,  where  these  provisions  have  been  wholly  disregarded,  we 
[have  yet  to  learn  that  there  has  been  a  word  of  reproof  to  these  officers ;  ^ 
[and  through  the  whole  correspondence  on  this  subject  there  has  been 
I  no  explanation,  palliation,  or  apology  on  this  account,  but  these  pro- 
|visions  of  law  have  been  permitted  to  remain  a  dead  letter. 

And  this  has  greatly  prejudiced  the  interests  of  these  parties.    Capt. 

'Gilbert  returned  from  St.  Helena,  at  the  earliest  possible  moment,  to 

:  his  emidoyers  to  represent  the  facts  as  to  the  Jones,  and  the  American 

consul  at  St.  Helena  sent  immediately  to  his  government  an  account 

of  the  seizure  of  the  vessel,  and  the  circumstances  in  relation  to  it. 

[Representations  were  at  once  made  in  London  to  the  British  govern- 


104 


ADJUSTMENT  OF  CLAIMS  UNDER  TOE 


ment,  by  Mr.  Stovenson,  tlic  Amoricjin  ininiHter,  ami  until  Homo 
auHwur  could  be  had  un  liifl  application,  indicating  the  dctciinination 
and  diNpoHition  of  tbo  lirltiHh  government  in  relation  to  the  claim,  no 
other  course  seemed  advinablo  or  i»roper  by  the  owners  of  the  vessel. 

The  case  was  one  recpiiring  urgent  and  prompt  action  on  the  part 
of  the  liritish  government,  so  that,  if  the  proceedings  of  Tiietitennnt 
Littlehales  were  not  disavowed,  any  other  less  adequate  remedy  the 
case  might  admit  of  couhl  he  resorted  to  in  season  to  retrieve  the 
owners  of  the  vessel  from  destructive  loss. 

The  communication  from  Mr.  Stevenson  to  Lord  Palmerston  on  the 
subject  was  on  the  Ifith  of  April,  1841,  five  months  after  the  adjudi- 
cation at  Sierra  Leone.  Hut  it  ap[)ears  from  the  corresj^ondence  in 
the  case,  that  no  inquiry  was  instituted  in  reference  to  it  tor  more  than 
lour  months  utter  that  time ;  and  though  the  attention  of  the  Itritish 
government  was  repeatedly  and  earnestly  called  to  this  subject,  as 
late  as  October  5,  1842,  Lord  Aberdeen,  in  reply  to  a  letter  from 
Mr.  Everett  in  relation  to  the  Jones,  states  that,  "from  the  want  of 
the  proceedings  at  Sierra  Leone,  her  Majesty's  government  have  been 
unable  yet  to  come  to  a  decision  in  the  case,  and  that  a  renewed  a|)pli- 
cation  has  this  day  been  made  to  the  proper  dei)artmenton  the  subject, 
and  that,  so  soon  as  her  Majesty's  government  shall  have  received  the 
necessary  information,  he  will  lose  no  time  in  communicating  to  Mr. 
Everett  the  decision  of  her  ^lajesty's  government  in  the  case." 

Five  months  after  this  time,  on  the  2d  of  March,  1843,  and  more 
than  two  years  after  the  ailjudication  at  Sierra  Leone,  the  first  informa- 
tion is  given  "of  the  decision  of  her  Majesty's  government,"  and  of 
the  grounds  on  whicb  the  justification  of  tbe  seizure  of  this  vessel, 
and  of  the  conduct  of  Lieutenart  Littlehales,  is  placed. 

During  all  this  time  the  owners  of  the  Jones  were  kept  in  entire 

•suspense  as  to  what  course  would  be  adopted,  and  the  vessel  and  cargo 

liad  been  long  before  this  sold,  by  order  of  court,  at  a  ruinous  sacrifice. 

To  the  communication,  giving  tbe  decision  of  her  Majesty's  govern- 
ment, received  after  a  delay  of  sucli  extraordinary  duration,  and 
against  whicb  delay  Mr.  Everett  strenuously  remonstrates,  a  full  and 
elaborate  reply  was  drawn  up  by  Mr.  Everett  on  the  18th  of  May, 
1843.  In  tliis  reply  he  presented  the  views  of  his  government,  and 
bis  comments  on  the  evidence  and  grpunds  taken  by  her  Majesty's 
ministers,  and  earnestly  asked  Lord  Aberdeen's  attention  to  the  state- 
ments and  grounds  submitted  to  him,  representing  "the  transaction 


sh 


nu 


J 


CONVENTION   WITH   GREAT  BRITAIN. 


106 


on  on  the 
10  adjudi- 
rulunco  in 
inoro  than 
ho  IJritish 
ul)joct,  as 
;tter  from 
lie  want  of 
have  heen 
wed  appli- 
ho  suhject, 
icoived  the 

ing  to  Mr. 

> » 


pt  in  entire 
1  and  cargo 
us  sacrifice. 
y's  govern- 
ration,  and 
t,  a  full  and 
Bth  of  May, 
nment,  and 
?r  Majesty's 
to  the  state- 
transaction 


on  which  it  had  hooti  his  iiaiiif'ul  duty  to  dwell  m  extruordimiry  and 
KpprisHive  in  all  its  parts,"  and  that  a  denial  of  repanition  "  would 
prodtice  a  degri'  of  discontent  on  the  part  of  the  government  and 
jjcople  of  the  United  Sfutos  of  a  oh ffacter  greatly  to  he  deprecated." 

To  tliis  urgent  h'ftcr,  to  which  the  attention  of  the  Hritish  govern- 
ment WHS  iiL'iviji  called  by  Mr.  Kverett  in  June,  1840,  no  reply  was 
made  hy  the  Ihi'i'ih  governniciit  for  more  than  finre  and  a  half  ijenra, 
when  Mr.  Bancroft,  Novemher  20,  1840,  adtlressed  a  letter  to  Lord 
Palmorston  in  reference  to  the  unanswered  letter  of  Mr.  Kverett  of 
May,  IH  I:J,  stating  "  that  he  was  iustruc/rd  hy  his  government  to  a.sk  an 
early  and  definite  rej)ly." 

A  reply  was  then  made  early  in  the  ensuing  month,  Avhich  was 
resi)()nded  toby  Mr.  lJancroft,and  wliich  was  again  replied  tohy  Tiord 
Palmerstou,  in  wliich  he  sets  up  the  closest  toclinical  ground  ami  oltjec- 
tions  to  the  claim  of  the  owners  of  the  Jones,  and  alleges  that  they  had 
had  "  ample  opportunities  to  assert  their  rights,  either  in  the  court  be- 
low, or  hy  an  appeal  from  the  decision  of  that  court  to  the  judicial  com- 
mittee of  herMajesty's  privy  council,"  and  denying  to  them  all  other 
remedy. 

In  March,  1849,  this  whole  sul»ject  and  the  correspondence  in  rela- 
tion to  it,  wascominunicated  to  Congress,  and  was  passed  u[)on  hy  a  very 
intelligent  committee,  who  unanimously  reporte<l,  througli  Mr.  Marsh, 
of  Vermont,  their  chairman,  "  that  the  government  of  the  United 
States  was  under  a  solemn  obligation  to  protect  the  citizens  of  the 
Union,  at  whatever  hazard,  in  the  exercise  of  their  lawful  callings  in 
their  coiumerce  with  foreign  nations,  and  that,  in  the  deliberale  judg- 
ment of  the  committee,  the  case  of  the  Jones  was  one  of  the  strongest 
in  which  the  American  government  had  ever  been  called  upon  to  dis- 
charge that  obligation.  That  in  the  history  of  our  intercourse  with 
civilized  nations  they  knew  few  instances  of  more  wanton  and  unpro- 
voked outrage  than  this  case  exhibited,  and  that  they  believed  the 
honor  and  the  interest  of  the  nation  demanded  that  the  government 
should  insist  upon  the  most  full  and  ample  pecuniary  redress  to  the 
owners  of  the  vessel,  if  not  upon  rei)aration  for  the  indignity  to  the 
American  flag,  by  the  condign  punishment  of  the  offender,  and  that  it 
was  the  duty  of  the  governmentof  the  United  States  to  renew  the  demand 
for  redress  to  the  owners  of  the  Jones,  and  strenuously  urge  the  same." 

From  the  proceedings  in  this  and  other  cases  this  cgmmission  ulti- 
mately originated,  by  which  it  has  been  proposed  to  settle  equitably 


106 


ADJUSTMENT  OF  CLAIMS  UNDER   THE 


and  justly  all  outstanding  claims  between  the  governments  accruing 

since  1814. 

The  cade  is  therefore  now  submitted  to  this  tribunal  under  circum- 
stances, after  this  long  delay  and  (fcirdship  to  these  parties,  entitling 
it  to  great  deliberation  and  consideration.  It  has  been  fully  argued. 
I  have  given  the  most  attentive  consideration  to  every  suggestion  that 
has  been  urged  in  defence  of  these  proceedings,  with  a  desire  to  regard 
equally  the  rights  and  interests  of  the  two  governments  as  an  arbiter 
between  them,  bound  by  every  consideration,  as  well  as  the  explicit 
declaration  subscribed  by  me,  to  decide  all  matters  submitted  to  our 
decision,  "to  the  best  of  my  judgment,  without  fear,  favor  or  affec- 
tion to  my  own  country." 

After  such  examination,  I  have  arrived  at  the  conviction  that  the 
complaint,  made  by  the  owners  of  the  Jones,  is  fully  sustained ;  that 
the  wrong  done  to  them  has  been  characterized,  in  its  initiation,  and 
in  almost  every  step  of  its  progress,  by  oppressive  acts  wholly  uncalled 
for  in  tlie  circumstances  of  the  case ;  that  the  seizure  of  the  vessel  was 
without  just  cause;  that  its  detention,  on  the  charge  of  being  con- 
cernet^  in  the  slave  trade,  had  no  probable  ground  to  sustain  it;  that 
its  removal  to  Sierra  Leone  for  trial  was  in  violation  of  just  rights  of 
these  parties  and  of  settled  principles  of  English  law ;  that  the  charge 
against  Captain  Gilbert  "  of  wilful  misconduct  and  opposition  to  con- 
stituted authorities"  had  nothing  to  justify  its  connexion  with  charges 
against  the  vessel,  and  are  wholly  unfounded  in  fact ;  that  the  delay 
and  neglect  of  the  British  government  in  looking  into  the  circum- 
stances of  the  case,  after  most  earnest  remonstrances  of  the  United 
States  had  been  repeatedly  made  to  them,  is  without  excuse,  and  has 
greatly  prejudiced  the  just  rights  of  these  claimants;  and  that  the 
owners  of  the  Jones  are  entitled  to  full  compensation  against  Lieu- 
tenant Littlehales  and  the  British  government,  who  have  throughout 
justified  and  sustained  him  as  their  agent,  for  all  injury  wliich  has, 
directly,  or  indirectly,  arisen  from  these  wrongw,  and  for  the  unjust 
delay  of  reparation  of  them  to  the  present  time. 

In  coming  to  this  result,  it  is  with  deep  regret  I  find  I  have 
not  tlie  full  concurencc  of  my  associate  commissioner  as  to  tlie  extent 
of  redress  these  claimants  are  entitled  to,  and  that  this  long  litigated 
controversy  must  remain  unadjusted  to  abide  the  final  decision  of  tlie 
umpire  ai)pointed  under  this  commission,  to  whom  it  is  now  ordered 
to  be  committed. 


CONVENTION  WITH  GREAT  BRITAIN. 


107 


;s  accruing 

ler  circum- 
3,  entitling 
lly  argued, 
[estion  that 
e  to  regard 
i  an  arbiter 
;he  explicit 
tted  to  our 
or  or  affec- 

)n  that  the 
ained;  that 
tiation,  and 
lly  uncalled 
e  vessel  was 
'  being  con- 
tain it ;  that 
ust  rights  of 
t  the  charge 
ition  to  con- 
ivith  charges 
at  the  delay 
the  circum- 

the  United 
use,  and  has 
,nd  that  the 
gainst  Lieu- 
e  throughout 

which  has, 
r  the  unjust 

find  I  have 
to  the  extent 
jng  litigated 
eision  of  the 
now  ordered 


Hornby,  British  Commissioner: 

Thii^  is  a  claim  made  upon  the  British  government  by  the  repre- 
sentatives of  Messrs.  Farnham  &  Frye,  of  Boston,  in  renpect  of  losses 
caused  by  the  seizure  of  their  vessel,  the  "Jones,"  by  a  British  cruiser 
at  St.  Helena,  on  September  12, 1840,  on  a  charge  of  being  in  British 
waters  without  a  national  character,  and  on  suspicion  of  being  engaged 
in  the  slave  trade,  such  an  offence  being  punishable  under  the  2d  and 
3d  Vic,  ch,  73.  The  ship,  it  appears,  was  sent  to  Sierra  Leone  for 
adjudication,  on  the  ground  of  there  being  no  vice-admiralty  court  at 
St.  Helena — the  particular  offence  charged  being  only  cognizable  in 
such  a  court.  One,  however,  of  the  grounds  of  complaint  is  specially 
founded  upon  this  proceeding,  inasmuch  as  it  is  alleged  that  any  court 
of  record  had  jurisdiction  over  the  charge  under  the  5th  Geo.  IV,  ch. 
113.     To  this  point  I  shall  presently  advert. 

The  trial  came  on  at  Sierra  Leone,  and  in  the  month  of  November 
following  the  judge  declared  the  charge  unsustained,  and  directed 
that  the  vessel  should  be  released.  Costs,  however,  were  given  to  the 
captor,  on  the  ground  that  the  error  into  which  he  had  been  led  in 
seizing  the  vessel  was  the  result  of  the  "  wilful  misconduct  of  the 
master." 

The  master  was  not  present  at  the  trial,  nor  does  it  appear  that 
*if  either  he  or  the  owners  were  represented  before  the  court. 

The  costs  were  not  paid  ;  and^  nobody  appearing  to  claim  the  vessel, 
it  was  ultimately  sold  in  the  usual  manner,  for  the  benefit  of  all  con- 
cerned. 

Practically,  then,  the  commissioners  are  asked  to  review  the  decision 
of  the  vice-admiralty  court,  which  has  never  been  appealed  against, 
and  which  decided  two  points  :  First,  that  the  vessel  was  not  engaged 
in  the  slave  trade  ;  secondly,  that  she  had  a  national  character  ;  with 
reference  to  which  latter  point  the  court  expressed  its  opinion  of  the 
conduct  of  the  master,  as  supplying  a  probable  cause  for  the  seizure, 
by  awarding  costs  to  the  captor. 

The  claimants  approve  the  first  portion  of  the  judgment,  but  declare 
the  latter  part  to  be  wholly  unfounded  in  either  reason  or  justice. 

Now  I  do  not  think  it  was  ever  intended  that  the  commissioners 

should  sit  as  a  court  of  appeal  from  the  properly  constituted  courts  of 

M  either  country ;  and  if  there  were  no  facts  before  us  but  those  on  which 


108 


ADJUSTMENT   OF  CLAIMS   UNDER   THE 


the  vice-admiralty  court  decided,  I  should,  without  hesitation,  reject 
this  claini  ou  tlie  ground  that  this  was  not  a  court  of  appeal. 

I  do  not  mean  to  say  that  circumstances  might  not  arise  in  many 
cases  which  would  induce  me  to  reverse  the  judgment  of  a  court — 
but  the  circumstances  must  he  of  a  certain  character  and  importance. 
It  would  not  he  sufficient  simply  to  show  that  a  point  of  law  was 
douhtt'ul,  or  that  another  judge  might  have  taken  a  different  view  of 
the  facts.  8uch  matters  are  within  the  jurisdiction  and  province  of  a 
court  of  appeal ;  but  if,  in  a  case  like  the  present,  additional  evidence 
was  offered — evidence  of  a  character  tending  to  show  that  had  it  been 
brouglit  before  the  judge  of  the  vice-admiralty  court,  a  judgment  more 
favorable  to  the  claimants  might  have  been  passed,  or  that  the  wrong- 
ful act  of  the  party  complained  against  prevented  such  evidence  from 
being  taken — tlien  I  think  the  way  would  be  opened  for  our  action. 

In  the  present  case,  the  commissioners  have  before  them  the  additional 
evidence  of  tlie  master,  the  supercargo,  and  such  members  of  the  crew 
as  were  not  present  at  the  trial.  Two  points  therefore  arise  for  us  to 
determine :  First,  whether  tliis  additional  evidence  is  of  such  a  character 
as  to  induce  us  to  overrule  tlie  judgment  of  the  vice-admiralty  court 
as  to  costs;  and  secondly,  whether  upon  this  evidence  we  ought  to 
award  compensation  in  the  nature  of  d.amages  to  the  owners  for  the 
losses  which  they  have  sustained  subsequent  to  the  date  of  the  judgment. 

As  I  differ  from  my  learned  colleague  on  both  points,  I  feel  bound, 
to  go  somewliat  at  length  into  the  evidence. 

In  doing  this  I  propose  to  divide  the  case  into  two  parts;  the  one 
having  reference  to  the  seizure  and  its  immediate  conse(piences,  the 
other  to  the  damages  which  may  be  said  to  have  been  sustained  subse- 
quently to  the  judgment  of  the  vice-admiralty  court.  Before  doing 
so,  however,  I  must  repeat  that,  as  a  general  prinditle,  effect  ought  to 
be  given  to  the  judgment  of  every  competent  tribunal,  when  nothing 
appears  tending  to  impugn  the  integrity  or  fair-mindedness  of  the  court. 

The  commissioners  are  asked  to  adopt  one  part  of  the  judgment  in 
questiim  and  to  reject  the  other  portion  of  it.  I  cannot  accede  to  this 
course,  because  both  parts  ajipear  to  me  to  be  founded  upon  an  equal- 
ly careful  consideration  of  the  circumstances  and  evidence,  and  ar- 
rived at  after  equal  deliberation. 

Tiio  first  fact  in  the  case  which  has  reference  to  the  subsequent 
seizure,  is  the  application  of  the  crew  of  the  "Jones"  to  Lieutenant 


CONVENTION   WITH   GREAT  BRITAIN. 


109 


ition,  reject 

al. 

se  in'raany 

)f  a  court — 

importance. 

of  law  was 
■rent  view  of 
irovince  of  a 
inal  evidence 
t  had  it  been 
Igmcnt  more 
vt  tlie  wrong- 
ividcnce  from 
our  action, 
the  additional 
•s  of  the  crew 
arise  for  us  to 
ich  a  character 
Imiralty  court 

we  ought  to 
)vvncrs  for  the 

he  judgment. 
I  feel  hound 

parts ;  the  one 
sciiuences,  the 
istained  suhse- 
Coforc  doing 
eft'oct  ought  to 
when  nothing 
■ss  of  the  court, 
e  judgment  in 
t  accede  to  this 
upon  an  equal- 
dence,   and  ar- 

thc  suhsequent 
to  Lieutenant 


Littlehales,  of  H.  M.  S.  Dolphin,  for  his  assistance  and  intervention  on 
finding  that  they  were  about  to  return  to  the  coast  of  Africa.  The  crew 
contended  that  they  had  signed  articles  to  proceed  to  "Montevideo" 
and  a  market,  and  thence  to  a  port  of  discharge  in  the  United  States — 
the  undisputed  fact, being  that  they  had  agreed  to  go  to  "Montevideo 
or  other  parts  between  the  line  of  latitude  36°  south  and  back."  In 
their  affidavits  subsequently  made  in  London  before  the  American  con- 
sul, they  state  that  the  ship  never  did  go  to  Montevideo,  but,  avoiding 
the  South  American  coast,  steered  for  the  coast  of  Africa.  The  con- 
sular agent  at  St.  Helena  had  decided,  when  appealed  to  by  the  mas- 
ter, that  the  crew  were  bound  to  go  to  the  ports  on  the  coast  of  Africa 
between  the  line  of  latitude  of  3r)°  south. 

From  the  crew  Lieutenant  Littlehales  learnt  that  they  suspected 
if  there  was  a  false  set  of  shipping  articles  on  board;  and  the  mate  said 
;4that  the  papers  exhibited  by  the  master  to  an  officer  of  a  Portuguese 
»  man-of-war  at   Loanda  were  headed   "Ambriz,"  and  not  "Monte- 
video." 
J,      On  this  information  Lieutenant  Littlehales  ai>pears  to  have  deter- 
k  mined  to  inspect  the  ship's  papers;  and,  after  being  told  by  a  clerk 
,;,,  at  the  custom-house  that  the  papers  were  not  there,  on  meeting  the 
I  master,  W.  Gilbert,  in  the  street,  he  asked  to  see  tlie  "Jones"  papers. 
I  To  this  re(i[uest  he  obtained  what  he  considered  an  unsatisfactory  and 
I  evasive  answer.     Tliis  is  the  version  given  of  this  interview  by  the 
,|  lieutenant,  as  well  as  by  his  mate  and  a  passenger  on  board  the  "Dol- 
I  phin;"  and  it  is  important  to  observe  here,  with  reference  to  tbe  ac- 
:|  counts  of  the  same  rencontre  given  by  tlie  master  in  two  affidavits,  that 
1  the  supercargo,  who  was  with  the  master,  states  tlie  latter  said  "the 
I  ship's  pa[)er8"  were  at  the  "custom-house."  Now  the  master,  in  his  lirst 
I  affidavit,  states  that  Lieutenant  Littlehales  asked  to  see  the  "manifest" 
of  the  "Jones,"  whereupon  he,  the  master,  inquired  his  motive.     He 
then  goes  on  to  say  that  tlie  lieutenant  repeated  his  request,  to  which 
he  made  the  same  answer ;  when  the  lieutenant  observed  that  if  he, 
the  master,  showed  them,  "mucli  trouble  would  be  saved  to  both  of 
them;"  upon  which  Gilbert  states  he  asked  the  officer  "  if  there  was 
,   not  a  custom-house  at  St.  Helena?"  whereon  Lieutenant  Littlehales 
I  turned  round  and  went  towards  the  sea.     In  the  second  affidavit  the 
I  master  gives  another  version,  as  follows :  "About  six  or  seven  o'clock 
I  on  Saturday  afternoon  I  was  accosted  by  Lieutenant  Littlehales  of  the 


110 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


British  armed  brig  Dolphin,  who  very  abruptly  demanded  my  mani- 
fest. I  did  not  then  know  Lieutenant  Littlehales.  I  asked  who  he 
was?  He  said  *he  was  commander  of  H.  M.  brig  Dolphin.'  I  asked 
if  he  considered  it  a  matter  of  right  to  demand  my  manifest  in  the  pub- 
lie  streets,  or  whether  he  asked  it  as  a  favor?  He  said  he  did  not 
consider  it  a  matter  of  right,  and  then  said,  'You  won't  show  it  me, 
will  you?'  and  before  I  could  make  answer  he  turned  round  and  toent 
aioay. '  * 

I  confess  I  find  it  difficult  to  reconcile  these  two  statements.  Either 
the  first  long  conversation  took  place,  or  Lieutenant  Littlehales  turned 
away  so  abruptly — as  described  in  the  last  statement — that  there  was 
no  time  for  it  to  have  taken  place. 

But  whatever  the  master  was  asked  for,  wh«ther  "papers"  or  "mani- 
fest," the  important  question  is,  what  did  he  say  on  the  subject  of  the 
"papers?"  and  this  is  at  least  clear,  for  the  supercargo  himself 
distinctly  declares  that  the  captain  replied  that  his  "  papers"  were  at 
the  ciisfom-house.         ' 

The  master  and  supercargo  also  say  that  the  lieutenant  was  not  in 
uniform.  The  lieutenant  and  those  that  were  with  him  declare  that 
he  was. 

The  next  scene  is  on  board  of  the  "Jones"  about  two  hours  after- 
wards, when  no  one  disputes  that  it  was  the  ship's  "papers"  that 
were  then  asked  for,  and  no  one  denies  that  the  answer  then  returned 
by  the  master  was  that  they  were  at  the  "consul's."  The  master 
then  goes  on  to  say  that  he  offered  to  bring  the  papers  to  Lieutenant 
Littlehales  on  the  Monday  morning ;  that  he  a*  ote  to  Lieutenant 
Littlehales,  offering  to  show  them  to  him ;  and  that  after  all  this,  the 
collector  of  customs  wrote  to  Lieutenant  Littlehales  an  explanatory 
and  expostulatory  letter.  Lieutenant  Littlehales,  on  the  other  hand, 
flatly  denies  that  the  master  ever  offered,  either  in  writing  or  other- 
wise, "to  show  his  papers"  or  "to  give  any  information  on  the  Mon- 
day morning,"  and  he  also  denies  "receiving"  or  "holding"  "any 
communication"  with  the  collector  after  the  seizure.  It  is  not  pre- 
tended that  the  master  attempted  to  see  or  speak  to  Lieutenant  Little- 
hales personally  on  board  the  "Dolphin,"  where  the  latter  was  to  be 
found,  although  it  is  said  that  he  twice  endeavored  to  go  on  board 
the  "Jones,"  where  the  lieutenant  was  not,  for  the  purpose  of  showing 
him  his  papers,  a  prize  crew  under  a  subaltern  being  in  possession. 


'-.J^r 


i.        .- 


CONVENTION   WITH  GREAT  BRITAIN. 


Ill 


)S8e8Sion. 


And  it  is  a  curious  fact  that  neither  these  papers  or  copies  of  chem  are 
now  before  the  commissioners,  nor  at  any  time  does  it  appear  that 
they  were  ever  shown  to  any  one  whose  seeing  them  would  have 
facilitated  the  discharge  of  the  vessel,  or  is  there  any  confirmation  of 
the  alleged  explapatory  or  expostulatory  letter  from  the  collector  of 
the  customs. 

In  the  course  of  the  argument  it  was  urged  by  the  learned  agent  of 
the  United  States  that  it  was  the  duty  of  the  lieutenant  to  have  oflFered 
every  facility  to  the  master  to  clear  his  vessel,  and  that  the  master 
was  justified  in  standing  upon  his  *'  rights,"  let  the  consequences  be 
what  they  might.  It  was  undoubtedly  the  duty  of  the  captor  to 
inspect  any  papers  oifered  to  him  for  inspection  by  the  master ;  but  it 
was  most  unquestionably  the  duty  of  the  master  to  have  facilitated 
the  inspection  of  his  ship-papers  by  the  captor.  If  he  had  done  so, 
all  the  subsequent  mischief  would,  in  my  opinion,  have  been  avoided. 
Nothing  would  have  been  easier  than  to  have  sought  Lieutenant 
Littlehales  on  board  H.  M.  S.  Dolphin,  yet  this  was  never  attempted, 
and  in  fact  no  attempt  was  ever  made  to  show  this  officer  the  papers, 
nor  does  it  appear  that  the  subaltern  in  command  of  the  prize  was 
ever  asked  to  look  at  them,  or  was  even  told  that  the  captain  had 
them  with  him  when  he  went  alongside  the  **  Jones"  on  the  Monday 
following  the  seizure.  Nor  does  it  appear  in  the  affidavits  of  the 
master  and  supercargo  that  the  former  really  had  his  papers  with 
him  on  these  occasions,  or  went  for  the  purpose  of  showing  them. 
At  page  238  of  the  printed  evidence,  both  these  individuals  say  that 
James  Gilbert  went  "  with  a  view  of  getting  on  board  of  the  vessel 
on  hiisiness."  I  confess  that  it  does  appear  to  me  to  be  a  strangely 
suspicious  circumstance,  that  the  master  never  attempted  to  explain 
the  facts  of  the  case  to  Lieutenant  Littlehales,  when  his  obvious  duty, 
and  indeed  his  interest  and  that  of  his  owners  demanded  that,  on 
being  refused  admission  to  his  ship,  he  should  have  gone  at  once  to 
Lieutenant  Littlehales,  asked  him  the  reason,  and  showed  him  that 
his  papers — if  he  had  them  (which  even  now  does  not  very  clearly 
appear) — were  all  right  and  as  they  ought  to  be.  That  this  would 
have  been  the  conduct  of  a  man  really  anxious  to  prevent  a  calamity, 
such  as  that  which  has  ultimately  fallen  on  the  owners,  appears  to 
me  to  be  indisputable. 

The  next  step  in  the  case  is  the  overhauling  the  vessel  and  the 


3 


1 


i 


f  : 


112 


ADJUSTMENT  OF   CLAIMS  UNDER  THE 


finding  of  two  letters,  both  addressed  to  the  supercargo  ;  one  being 
from  the  owners,  and  the  other  from  a  Spaniard  of  the  name  of  D 
Masoro  I^fiiray.     They  are  as  follows  : 

Messrs.  Farnhain  and  Co.  to  Mr.  Sexton. 

,  Sallm,  March  12, 1840. 

Deah  Sir  :  Your  much  estoeiiiod  favor  of  December  4  from  Ambriz,  per  "  Quill,"  was 
promptly  delivered  on  the  arrival  of  that  vessel,  Februarys.  Your  remarks  on  the  trade 
with  Doctors  Wilson  and  Savay,and  others,  at  Capo  PalmaH,aro  noted,  but  will  not  be  acted 
upon  at  present.  We  have  no  doubt  there  is  a  field  there  to  work  in  to  advantage,  but  we 
shall  i)rolrilily  omit  it  till  your  return.  The  information  however  is  very  acceptable.  Your 
sales  at  other  places  wore  so  limited  that  the  profits  will  not  pay  for  the  delay  ;  but  wo  think 
you  will  have  found  a  very  good  market  at  Loanda  for  all  the  flour  you  had  on  board,  pro- 
vided you  did  not  report  over  one  hundred  barrels.  If  you  obtain  the  quoted  rates,  or  even 
thirty  dollars  i)cr  barrel,  for  the  470  barrels  remaining,  the  "  Sarah" must  make  a  fine  voy- 
age, unless  she  is  very  badly  mismanaged  on  her  retur'  passage,  of  which  there  is  much 
reason  to  fear.     Wo  regret  much  that  we  were  so  greatly  deceived  in  Captain  Cork. 

We  know  nol  whose  fault  it  was  that  the  specie  was  left  in  New  York.  The  writer  found 
it  in  the  s;ifo  after  you  sailed,  and  u.sed  it  ;  he  knew  nothing  of  it  before. 

We  heard  of  your  arrival  at  Sierra  Leone  in  twenty-four  days  by  the  British  man-of-war 
brig  "Butterfly "and  her  prize  ;  but  your  letters  did  not  come  to  hand  till  January  2],  (four 
months  after  they  were  written,)  and  then  by  the  "  Saladin." 

George  and  Cork's  letters  of  November  21,  rid  Rio,  came  to  hand  two  weeks  since,  and 
we  hope  soon  to  hear  in  the  same  way  or  direct.  The  "  Sea-mew"  arrived  at  St.  Helena 
January  6,  and  sailed  14th  for  Africa,  and  perhaps  will  soon  get  home.  We  hope  you  closed 
your  sales  however  before  she  arrived  at  Loanda.  The  "  Quill"  is  hero,  and  idle  we  believe. 
Nathan  Augustus  Frye  was  married  last  nii'ht,  and  probably  will  not  wish  to  sail  very  soon 
for  Africa.  It  is  not  known  that  Ike  "  Jones"  is  going  to  Africa,  and  we  hope  she  will  not  be 
followed  very  closely  ;  but  the  "  Jones"  is  a  fast  sailer,  and  we  hope  will  have  a  short  passage, 

Mr.  Hunt  has  just  been  in  to  ask  plainly,  if  the  "  .loncs"  goes  to  Africa.     Ho  writes  to  Cap- 
tain Bryiint  by  lier.     He  says  the  "  Quill"  is  doing  nothing  yet. 
Yours  truly, 

P.  J.  FARNHAM  &  CO. 

Captain  Frakcis  W.  Sexton,  ^Imbriz. 


i 


[Translation.] 
D.  Masoro  Maruy  to  "  Captain  Sequeson."* 

BoRNA,  June  16,  1840. 
Sir  ano  Esteemed  Friend:  I  hope  you  are  well.  I  inform  you  now  of  all  the  trouble  1 
had  respecting  the  ivory.  I  am  in  expectation  of  "  Chibuca,"containinB^  vine  hundred  teeth  of 
ivory  "  together  ivilh  one  liundred  slaves  ;"  and  yet  I  shall  not  be  able  for  the  present  <o purc/uwc 
them.  It  would  not  be  amiss  if  you  please  to  let  me  have  some  cash  for  me  to  finish  this  busi- 
ness, and  also  the  barraca.  At  this  moment  I  am  in  expectation  of  the  boat  from  Loango, 
with  her  cargo,  and  also  the  launch  in  question.  You  will  hear  several  more  particulars  from 
Juan  Maruy,  who  will  conmiunicatc  them  to  you  in  |!i>r».),.  My  desire  is,  sir,  that  you  may 
keep  in  health. 

Your  faithful  servant. 

DOMINGO  MASORO  MARAY 


*  Mistake  for  Sexton. 


CONVENTION  WITH   GREAT  BRITAIN. 


113 


one  being 
lamo  of  D 


xh  12,  1840. 

"  Quill,"  was 
8  on  the  trade 
ill  not  be  acted 
autagc,  but  we 
uplnblo.    Your 

;  but  we  think 

on  board,  pro- 
1  rates,  or  even 
lake  a  fine  voy- 
there  is   much 

Cork, 
he  writer  found 

tish  man-of-war 
.nuary  21,  (four 

/ceka  since,  and 
ed  at  St.  Helena 
hope  you  closed 
idle  we  believe. 
Lo  sail  very  soon 
)f  she  will  not  ht 
orl  passage. 
lo  writes  to  Cap- 


JHAM  St  CO. 


fane  IG,  1840. 
all  the  trouble  1 

lundred  teeth  of 
■escnt  to  purchase 

finish  til  is  busi- 
at  from  Loango, 
particulars  from 
ir,  that  you  may 


RO  MARAY 


Besides  these  letters,  irons,  spare  plank,  and  articles  used  for  slave- 
food  were  found. 

This  is  the  evidence  with  reference  to  the  cause  of  seizure.  And  as  the 
judge  at  Sierra  Leone,  whose  experience  enabled  him  to  form  an  opinion 
on  such  a  subject,  ha.s  decided  that  the  evidence  was  insufficient  to 
sustain  so  serious  a  charge,  I  have  no  liesitation  in  giving  my  full 
assent  to  that  judgment ;  but  on  the  other  hand  I  cannot  but  feel, 
when  endeavoring  to  place  myself  in  the  position  of  Lieutenant 
Littlehales,  and  viewing  these  events  and  circumstances  separately 
and  in  the  order  in  which  they  happened,  and  not  collectively  and 
from  an  epoch  long  subsequent  to  the  time  of  tlteir  occurrence,  that 
the  jiidge  at  Sierra  Leone  was  riglit  in  considering  the  error  of  the 
seizure  materially  induced  by  the  conduct  of  the  master.  The  sus- 
picious circumstances  were  undoubtedly  those  connected  with  the  ship- 
ment of  the  crew,  their  assertions  with  regard  to  false  papers  and  the 
objects  of  the  voyage,  the  evasive  answers  and  questionable  conduct  of 
the  master  and  lastly,  the  two  letters  to  which  I  have  alluded. 

The  seizure  being  complete,  on  the  sixth  day  after  it  the  vessel 
sailed  for  Sierra  Leone  with  three  of  the  ''Jones"  crew.  It  is  not 
alleged  that  the  master,  or  the  supercargo,  asked  to  be  allowed  to  go, 
although  this  is  sought  to  be  inferred  when  it  is  stated,  hut  contradicted, 
that  he  twice,  before  tlie  Monday  previous  to  the  departure  of  the 
vessel,  tried  to  get  on  board.  About  six  or  seven  weeks  after  the 
arrival  of  the  vessel  at  Sierra  Leone  site  was  libelled,  tried,  and  de- 
clared free. 

The  reason  why  Lieutenant  Littlehales  sent  the  vessel  for  adjudica- 
tion before  a  vice-admiralty  court,  instead  of  libelling  her  before  a 
court  of  record  at  St.  Helena,  is  stated  to  be  that  the  latter  court 
had  only  jurisdiction  under  5  Geo.  IV,  ch.  113,  to  try  the  simple 
question  of  ivhcfher  or  not  the  ship  was  actu.ally  engaged  in  the  slave 
trade,  while  the  charge  made  against  the  "Jones,"  involving  the 
doubt  of  her  nationality,  suggested  by  the  suspicion  of  lier  having 
doviblo  or  false  sets  of  papers  on  board,  coupled  ^yith.  a  suspicion  of  her 
being  engaged  in  the  slave  trade,  being  only  an  offence  created  by  the 
2  (&  3  Vic,  ch.  73,  it  could  not  be  tried  by  any  other  court  except  that 
specially  pointed  out  by  the  statute. 

I  come  now  to  tlie  second  division  of  the  case,  namely,  to  that  part 
which  has  reference  to  the  cause  of  the  damage  subsequent  to  the 

S 


St 


'  'I 


I 


ill    ! 


114 


ADJUSTMENT  OF  CLAIMS    UNDER  THE 


decree  of  the  court ;  and  the  first  question  which  I  find  myself  called 
upon  to  answer  is  this :  Was  the  master  justified,  under  the  circum. 
stances,  in  abandoning  his  vessel  so  entirely  as  he  did  ?  I  believe 
that  he  was ;  and  if  I  am  right  in  the  view  which  I  take  upon  this 
part  of  the  case,  namely,  that  the  conduct  of  the  master  in  abandoning 
his  vessel  was,  under  the  circumstances,  unjustijiahle,  and  that  the 
losses  subsequent  to  the  judgment  of  the  court  were  in  the  first  instance 
the  result  of  such  abandonment  by  him,  and  afterwards  by  his  prin- 
cipals, (the  owners  of  the  vessel,)  it  follows  that  it  would  be  an  act  of 
injustice  to  hold  the  British  government  responsible  in  damages  for 
consequences  which  were  the  natural  result  of  the  conduct  primarily 
of  the  claimant's  agents,  and  subsequently  of  their  own.  In  making 
these  remarks  I  am,  of  course,  confining  myself  to  the  losses  suffered 
after  the  judgment  decreeing  the  vessel  "recete." 

Now,  in  order  to  test  the  conduct  of  the  master,  I  propose  to  inquire 
whether,  as  between  insurers  and  owners,  such  an  abandonment  (sup- 
posing capture  to  be  a  risk  insured  against)  would  have  been  justifiable, 
so  as  to  render  the  former  liable,  as  on  a  total  loss,  to  the  latter ;  and 
on  looking  carefully  hrough  the  cases  on  the  subject,  I  do  not  find 
anything  to  justify  me  in  deciding  this  case  upon  the  basis  that  the  mas- 
ter acted  either  prudently,  fairly,  or  for  the  interests  of  all  parties. 
The  rules  laid  down,  so  far  as  they  concern  the  master,  and  in  so  far  as 
the  British  government  may  now,  for  the  purpose  of  illustration,  be  con- 
sidered as  standing  in  the  position  of  insurers  called  upon  to  pay  as 
in  the  case  of  a  total  loss,  are,  in  my  judgment,  equally  applicable. 
It  is  Stated  in  Phillips  on  Insurance  (vol,  i.  page  38)  that  "abandon- 
ment is  only  justifiable  as  against  insurers  when  the  thing  insured  is 
irretrievably  lost ;"  and  it  is  elsewhere  laid  down  that  the  total  loss  upon 
which  abandonment  is  naturally  consequential  must  be  "clear  and 
absolute, "  that  is,  "  tchere  all  probable  hope  of  recovery  is  gone. ' '  Lord 
Mansfield,  too,  in  giving  judgment  in  a  case  in  which  the  alleged  loss 
was  the  consequence  of  a  capture,  said  (M.  d  J.,  2  Douglas,  232)  the 
question  is,  "whether  the  consequences  of  the  capture  were  such  as, 
notwithstanding  the  recapture,  occasioned  a  total  obstruction  of  the 
voyage,  or  whether  they  merely  occasioned  a  partial  stoppage,  as  in 
the  case  of  ^Hamilton  v.  Mendes.'"  It  has  been  held  also  that, 
although  capture  will  sanction  an  abandonment,  as  in  the  case  of  a 
total  loss,  yet  when  followed  by  a  recapture  or  restitution  (and  it  must 


CONVENTION    WITH   GREAT   BRITAIN. 


115 


be  recollected  thrit  by  the  maritime  law  no  change  of  property  takes 
place  until  after  condemnation)  it  does  not  do  so;  and  this  doctrine  is 
practically  laid  down  by  Chief  Justice  Marshall,  •-'  a  case  cited  in  the 
work  of  Mr.  Phillips^  to  which  I  have  referred.  *.  the  case  of  Gar- 
derev.  Col,  7  «7o/m'Sf  514,  Mr.  Justice  Yates  says  that  it  is  the  bounden 
duty  of  a  master  to  labor  diligently  for  the  recovery  of  his  owner's 
property;  and  that  if  he  does  not,  he  lays  himself  open,  after  aban- 
donment by  his  owners,  to  an  action  at  the  suit  of  the  insurers,  whose 
agent  by  that  act  he  becomes  in  the  contemplation  of  the  law.  And 
in  numerous  other  works  it  is  laid  down  as  a  maxim  of  maritime  law, 
that  it  is  incumbent  on  the  master  "to  stick"  to  the  vessel  until  the 
last  moment,  and  even  to  its  ''planks."  I  have  merely  cited  these 
authorities  in  proof  of  what  I  consider  to  be  the  imdisputed  duties  of 
a  master  of  a  vessel ;  and  if  a  fulfilment  of  them  were  necessary  to 
enable  an  owner  to  recover  as  against  his  insurers,  there  is  no  good 
reason  for  assuming  them  to  be  unnecessary  as  between  parties  situated 
as  the  claimants  are  towards  the  British  government.  If  then,  in  the 
present  case,  the  insurers  could  not  have  been  called  upon  to  pay^  as  in 
the  case  of  a  total  loss,  it  is  difficult  to  discover  any  principle  which 
should  impose  a  heavier  obligation  on  the  British  government. 

Having  then  determined  the  question  of  what  was  the  duty  of  the 
master  under  the  circumstances  of  this  case,  I  proceed  to  examine  the 
grounds  upon  which  its  performance  is  sought  to  be  excused ;  and  the 
first  is  that  Lieutenant  Littlehales  did  not  send  him  and  the  supercargo 
with  the  prize  crew  to  Sierra  Leone.  I  do  not  find,  however,  that  either 
of  them  ever  asked  to  go,  nor  is  it  stated  anywhere  that  they  were 
unable  to  go  there,  or  that  no  subsequent  opportunity  presented  itself ; 
wliilc  the  presumption  is^  from  what  is  well  known  concerning  the 
intercourse  between  the  African  coast  and  St.  Helena  in  1840,  that 
communication  between  the  two  places  was  frequent.  Not  only,  how- 
ever, was  no  attempt  made,  either  by  the  captain  or  supercargo  to 
accompany  the  vessel,  (for  the  alleged  refusal  of  the  subaltern  in  com- 
mand of  the  "Jones"  to  permit  thera  to  come  on  board  only  extended  to 
the  Monday,  and  the  vessel,  it  must  be  borne  in  mind,  did  not  sail  be- 
fore the  following  Saturday,)  but  it  does  not  appear  that  they  ever 
attempted  to  apprise,  or  ever  did  apprise,  by  letter  or  otherwise,  the 
factors  of  Messrs.  Farnham  and  Frye  on  the  coast  of  Africa,  or,  in  short, 
any  of  the  trading  connexions  of  the  owners ;  and  it  is  in  evidence 


I  11 


116 


ADJUSTMENT   OF  CLAIMS   UNDER   THE 


lih 


that  they  had  largo  trading  connexions  on  the  coast,  wlio  could  have 
watched  the  proceedings  on  behalf  of  the  owners,  and  who  might  have 
reclaimed  the  vessel  the  moment  she  was  declared  free  from  the  charge 
made  against  her,  and  enabled  her  to  continue  her  voyage.  Nothing, 
however,  was  done;  the  most  ordinary  precaution,  against  consequent 
losses  were  systematically  neglected,  and  thus  it  appears,  from  the  first, 
that  those  most  concerned  and  interested  in  the  case  made  up  their  minds 
to  wash  their  hands  of  the  whole  affair — therein,  as  it  appears  to  me,  neg- 
lecting the  very  first  duties  of  men  in  their  position,  and  strongly  sug- 
gesting the  suspicion  that  the  master  and  supercargo,  at  least,  must  have 
had  pretty  strong  grounds,  only  known  perhaps  to  themselves,  for  sus- 
pecting that  the  charge  would  be  substantiated  ;  in  which  case  they  may 
have  considered  that  their  own  personal  safety  within  the  jurisdiction 
of  the  court  would  have  become  somewhat  problematical. 

It  has  been  said,  however,  that  the  master,  being  left  without 
money  or  clothes,  could  not  proceed  to  Sierra  Leone.  But  the  same 
means  which  enabled  him  to  take  the  longer  joui  iicy  to  England,  and 
thence  to  America,  would  also,  it  may  be  fairly  presumed,  have  enabled 
him  to  make  the  shorter  journey  to  the  coast  of  Africa. 

Passing  by  the  question  as  to  whether  the  master  and  sui)ercargo 
were  guilty  of  misconduct,  it  becomes  important  to  ascertain  the  course 
pursued  by  the  owners  on  their  being  made  ac(piainted  with  what  had 
taken  place. 

In  the  month  of  January,  1841,  they  had  received  intelligence  of 
the  capture  and  sending  of  the  "Jones"  to  Sierra  Leone,  and  as  early 
as  the  8th  of  February,  in  the  same  year,  they  had  notice  of  the  clearance 
of  the  vessel  by  the  judgment  of  the  court.  Both  prior  and  subsequent 
to  these  dates,  they  had  other  vessels  trading  on  the  coast ;  their  super- 
cargo had  returned  to  Africa,  and  yet  no  attempt  was  made  by  them,  or 
by  any  one  in  their  behalf,  to  reclaim  the  "Jones,"  or  to  prevent  the  dam- 
age which  was  then  going  on.  These  are  laches  which  I  cannot  overlook. 
It  is  conduct  strictly  in  keeping  with  that  of  the  captain,  and  was 
probably  suggested  by  hira ;  and  throughout  it  savors  of  a  determi- 
nation, through  the  instrumentality  of  the  United  States  government, 
to  make  the  Britisli  government  answerable,  not  only  for  losses  sus- 
tained through  the  error  of  an  officer  in  its  service,  but  also  for  losses 
the  immediate  result  of  laches  which  even  the  most  vexatious,  unjus- 


! 


CONVENTION    WITU   GRBAl 


117 


lid  havo 
;ht  liavo 
c  charge 
Nothing, 
1  sequent 
the  first, 
>ir  minds 
me,  neg- 
gly  8Ug- 
lust  have 
,  for  sus- 
;liey  may 
isdiction 

without 
the  same 
and,  and 
i  enabled 

ipercargo 
he  course 
wrhat  had 

gence  of 
as  early 
clearance 
:)sequent 
ir  super- 
them,  or 
thedam- 
)verlook. 
and  was 
determi- 
jrnment, 
sses  sus- 
or  losses 
8,  unjus- 


tifiable, and  improper  conduct  on  the  ])ar(  i       he  Britis     tiuthor     e»j 
would  have  neith^  justified  nor  excused. 

Feeling  therefore  that  the  seizure,  though  not  justifiid  oi  ho 
ground  upon  which  it  has  been  assorted  the  vessel  was  seized — miv  iy, 
that  she  was  engaged  in  the  nlave  trade — was  the  consequence  ol  the 
suspicions  excited  in  the  mind  of  Lieutenant  Littlehales  by  the  crow, 
of  the  unsatisfactory  conduct  of  the  master,  and  of  the  discovery  of  the 
letters  addressed  to  the  supercargo,  I  must  say  that  I  agree  with  the 
spirit  of  the  judgment  pronounced  by  the  vice-admiralty  court  at 
Sierra  Leone,  which  by  its  terms  attributed,  to  a  very  great  degree, 
the  "error  of  the  seizure"  to  the  conduct  of  the  master.  The  case, 
however,  is  now  brought  before  the  commissioners  upon  different 
grounds.  We  are  not  asked  to  declare  the  vessel  guilty  or  not  guilty 
of  the  charge  under  which  slie  was  libelled,  but  we  are  simply  asked 
to  give  the  owners  compensation  for  any  damages  they  may  have 
sustained  through  the  conduct  of  an  officer  of  the  British  government. 
To  this  extent  1  am  willing  to  accede  to  the  prayer  of  the  claimants  ; 
but  I  cannot  go  further,  and  compensate  them  for  losses  which  appear 
to  raft  the  direct  and  natural  result  of  their  own  laches  and  those  of 
their  authorized  agents.  One  fact,  however,  has  entered  into  my  com- 
putation of  the  comjiensation  to  which  I  conceive  the  owners  have  a 
fair  claim,  and  I  mention  it  because  on  principle  I  shall  feel  it  my 
duty,  whenever  it  occurs,  to  treat  it  in  the  same  way.  To  the  judg- 
ment of  the  court,  the  captors  thought  fit  to  enter  an  appeal ;  and 
although  such  a  proceeding  does  not  appear  in  the  present  case  to  have 
in  any  way  affected  the  vessel,  yet  I  consider  that  where  an  appeal  is 
entered  without  any  sufficient  or  probable  cause  for  disputing  the 
judgment  of  the  court,  and  subsequently  abandoned,  the  parties 
intended  to  be  affected  thereby  are  fairly  entitled  to  compensation  for 
any  expense,  inconvenience,  or  loss  of  time  to  which  they  may  have 
been  put. 

The  cargo,  of  whatever  it  consisted,  (and  on  this  head  there  is  very 
great  disparity,  both  as  to  quantity  and  value,  in  the  evidence  of  the 
master  and  owners  and  that  of  the  supercargo — sec  statement  in 
memorial  and  affidavit  of  F.  Sexton,  p.  218  of  printed  evidence,)  was 
sold  simply  for  the  benefit  of  all  concerndtt,  because  it  was  deteriorat- 
ing in  value  in  consequence  of  the  neglect  of  the  owners  to  look  after 
it,  after  they  had  notice  that  the  vessel  was  acquitted ;  and  for  this 


--«i< 

,..:li. 


118 


ADJUSTMENT   OF  CLAIMS   UNDER  THE 


reason  I  do  not  consider  them  in  justice  or  equity  entitled  to  more 
than  the  proceeds  of  the  sale.    ^^ 

Estimating  tlicreforo  the  detention  of  the  vessel  consequent  on  the 
seizure — as  from  the  12th  of  Soptcmber,  1840,  to  the  12th  of  May, 
1841,  a  period  of  eight  montlis — at  £1,500;  putting  down  also  the 
probable  injury  sustained  by  the  vessel  in  that  climate  at  a  third  of 
its  alleged  value,  that  is  to  say,  at  CI, 000;  and  awarding  for  the  loss 
suffered  on  a  forced  sale  of  stores,  rendered  neces.sary  by  such  detention, 
at  £300,  with  interest  on  these  three  suniB  for  twelve  years  and  six 
months  at  five  per  cent.  i)er  annum  from  September,  1840,  to  Feb- 
ruary, 1853,  equal  to  £1,749 — I  adjudge  to  the  ehiinuuits  these  four 
sums  of  £1,500,  CI, 000,  £300,  £1,749,  together  with  the  sum  of 
£1,C35  3.9.  Id.,  the  amount  realized  by  tlie  sale  of  the  ship,  stores, 
cargo,  &c.,  and  also  the  bags  of  coin  and  specie  found  on  board  the 
"Jones,"  and  now  in  the  custody  of  the  marshal  of  the  vice-admiralty 
court  of  Sierra  Leone,  making  a  gross  total,  exclusive  of  the  said 
coins,  &c.,  of  £0,184  3.s.  Id. 


*., 


.    t 


'4 


)i      I  Jt|U.|UUJPli»W 


CONVENTION   WITH  GREAT   BRITAIN. 


110 


a 


it  on  tho 
of  May, 
also  the 
,  third  of 
•  tho  loss 
otc'ution, 
H  and  six 
,  to  Feh- 
heso  four 
sura  of 
[),  stores, 
oard  the 
dmiralty 
the  said 


Hates),  unii)ire: 

The  uinpirc,  appoinU'd  aj^rt'ciibiy  to  the  provisions  of  the  convention 
entered  int(»  between  (rrcat  Hritain  and  the  United  Stiite.s,  on  tho  8th 
of  Fehruary,  ISGIJ,  for  the  adjustment  of  claims  by  a  mixed  oommis- 
sion,  having  been  duly  notified  by  tho  conimisHiunerH  UTider  tho  said 
convention  that  they  had  been  unable  to  agree  upon  tho  decision  to  be 
given  with  reference  to  the  claim  of  the  owners  of  the  baniuo  "Jones," 
so  far  as  regards  the  amount  of  compensation  to  be  paid  })y  the  gov- 
ernment of  (treat  Britain  ;  and  having  carefidly  examined  and  con- 
sidered the  papers  and  evidence  produced  on  tlie  hearing  of  the  said 
claim;  and havingeonferredwiththesaidconmiissionersthereon, hereby 
reports  and  awards  that  there  is  due  from  the  government  of  Great 
Britain  to  theownersof  the  barque  "Jones,"  or  their  legal  representa- 
tives, the  sum  of  ninety-six  thousand  seven  hundred  and  twenty  dol- 
lars ;  to  the  supercargo,  Sexton,  the  sum  of  twelve  hundred  dollars  ; 
to  James  Gilbert,  the  master,  the  sum  of  eighteen  hundred  and  sixty- 
three  dollars  ;  to  Ebenezer  Symonds,  the  mate,  the  sum  of  eight  hun- 
dred and  forty-two  dollars — together  one  hundred  thousand  six  hun- 
dred and  twenty-five  dollars  ;  or,  at  the  exchange  of  $4  85  per  pound 
sterling,  twenty  thousand  seven  hundred  and  forty-seven  pounds  eight 
shillings  and  five  pence.  The  British  government  retaining  the  pro- 
ceeds of  the  sales  of  the  brig  and  cargo  at  Sierra  Leone,  and  the  silver 
coin  now  in  the  possession  of  the  vice-admiralty  court  at  that  place. 


'S 


•ii 


<* 


If 


120 


:3k:-:: 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


* 


THE  MESSRS.  LAURENT. 


Where  claimants,  who  were  originally  British  subjects,  had  become  dciniciled  in  Mexico 
and  continued  to  reside  there,  engaged  in  trade,  during  war  between  Mexico  and  the  United 
States,  held,  tiiat  they  had  so  far  changed  their  national  character  that  they  could  not  be 
considered  "  British  subjects"  within  the  meaning  of  these  terms  as  used  in  the  convention  for 
the  settlement  of  claims  of  British  subjects  upon  the  government  of  the  United  States. 

It  appears  from  the  memorial  of  the  claimants,  filed  in  this  case, 
that  the  Messrs.  Laurent  have  been  resident  merchants,  engaged  in 
business  in  Mexico,  from  1829  to  the  present  time,  a  period  of  twenty- 
five  years  ;  that,  in  1847,  a  law  Avas  passed  by  the  Mexican  Congress, 
authorizing  a  sale  of  certain  church  property,  for  the  purpose  of  rais- 
ing the  sum  of  |15,000,000  for  the  necessities  of  the  government. 

The  claimants  occupied  a  house  belonging  to  the  church,  and  made 
proposals  to  the  government  to  purchase  it.  TJiese  proposals  were 
accepted,  and  the  government  ordered  the  contract  to  be  duly  drawn 
up,  and  executed  b}'  the  authorized  officer  appointed  for  this  purpose. 
The  contract  was  signed  by  the  Messrs.  Laurents.  and  the  purchase- 
money  v.as  dejiosited  in  the  hands  of  a  banker,  to  await  the  execution 
of  the  instrument  by  the  government  officer ;  but  owing  to  some 
neglect  it  was  not  signed  by  liim,  and  in  the  meantime  a  revolution 
occurred,  and  the  new  president  was  authorized  to  annul  the  law  for 
the  sale  of  the  church  property,  which  he  <lid.  Th&  claimants  remon- 
strated against  the  proceeding,  and  claimed  the  property  under  their 
contract  with  the  government. 

While  such  was  the  existing  state  of  things  in  reference  to  this 
property,  war  occurred  between  tlie  United  States  and  Mexico.  The 
city  of  Mexico  was  taken,  and  the  money  of  the  Messrs.  Laurents 
thus  deposited  was  confiscated  by  the  commander  of  the  American 
army  as  the  property  of  the  Mexican  government. 


Il, 


CONVENTION   WITH   GREAT    BRITAIN. 


121 


After  peace  Avas  made  between  the  two  countries,  the  church  claimed 
the  house  as  their  property,  and  instituted  suit  to  obtain  possession  of 
it.  The  Mexican  courts  sustained  the  claim  of  the  church,  and  dis- 
possessed the  Messrs.  Laurents  of  the  house  ;  and  they  now  seek  re- 
muneration against  -the  United  States  for  the  money  confiscated  as 
British  subjects,  entitled  to  prosecute  their  claim  under  the  provisions 
of  this  convention. 

The  agent  of  the  United  States  having  taken  e.Kception  to  the  juris- 
diction of  the  commission^  on  the  ground  that  the  Messrs.  Laurent, 
under  the  facts  disclosed,  were  not  to  be  regarded  as  British  subjects 
within  the  meaning  of  the  convention,  the  case  was  fully  argued  on 
this  point,  and  submitted. 


*i 


'\  f. 


r 


^ 


V 


% 


122 


ADJUSTMENT   OP  CLAIMS  UNDER  THE 


i 


Hannen,  agent  and  counsel  for  Great  Britain  : 

It  cannot  be  disputed  tliat  prima  facie  tlie  Messrs.  Laurents  are 
entitled  under  the  terms  of  the  convention — namely,  "subjects  of  her 
Britannic  Majesty'" — to  have  their  claim  entertained  by  the  commis- 
sioners. ^ 

I  agree,  however,  that  a  treaty  or  convention  is  to  be  construed, 
and  particular  expressions  in  it  inter]»reted  agreeably  to  the  rules  of 
international  law. 

I  do  not  know  tipon  what  principle  of  law,  or  what  authority  among 
jurists,  a  resfricfice  interpretation  could  be  affixed  upon  these  words  of 
the  convention,  unless,  indeed,  (as  I  understand  the  American  counsel 
to  argue,)  they  happen  to  have  leceived  such  restrictive  interpretation 
from  an  uniform  current  of  decisions  of  acknowledged  international 
authority. 

I  do  not  see  that  the  authority  of  any  writer  on  international  law  is 
referred  to  to  sustain  this  2)osition,  and  the  cases  wliich  are  cited  are 
far  from  satisfying  mo  that  the  commission  could  legally  adopt  any 
such  cxcejitional  construction  of  the  terms  as  is  contended  for.  They 
are  taken  from  the  prize  courts,  from  the  privy  council,  from  the  com- 
mon law,  and  from  the  equity  courts. 

A  misunderstanding  of  the  cases  in  the  prize  courts  appears  to  me 
to  lie  at  the  root  of  the  argument  contended  for. 

It  is  (juite  true  that,  flagrante  hello,  merchants  residing  in  the 
enemy's  country  are  considered,  with  reference  to  the  belligerent 
rights  of  maritime  prize,  as  subjects  of  that  country,  without  refer- 
ence to  tlie  country  of  their  origin  or  allegiance,  and  without  much 
reference  to  the  length  of  their  residence.  Their  domicil,/or  this  par- 
ticular purpose,  is  said  to  be  sufficient  to  found  the  right  of  the  mari- 
time captor;  but  it  would  be  stretching  the  principle  of  those  decisions 
to  an  extent  which  was  never  intended,  to  say  that  they  were  not 
British  subjects  in  the  sense  of  this  convention :  for  instance,  and  the 
example  alone  is  sufficient  to  ar*  ver  the  whole  question,  is  there  any 
jurist  who  would  say,  that  an  ry  offered  to  a  British  merchant, 
residing  at  Mexico,  would  not,  au  other  means  of  redress  being  ex- 
hausted, justify  the  issue  of  reprisals  on  the  part  of  Great  Britain? 

I  contend  that  the  principles  of  international  law  do  not  warrant 
the  restrictive  interpretation  sought  to  be  put  upon  the  plain  loords  of 
the  convention,  and  that  the  Messrs.  Laurents  are  not  disentitled  to 
have  their  claim  entertained  by  the  commissioners. 


CONVENTION    WITH    GREAT  BRITAIN. 


123 


sars  to  me 


Thomas,  agent  and  counsel  for  the  United  States  : 

In  his  opening  speocli,  the  counsel  for  the  British  government  has 
addressed  himself  to  the  (luestinn  of  the  jurisdiction  of  the  commission, 
which  I  gave  him  notice  I  sliouhl  deny  in  tliis  case ;  and  I  shall  in 
my  reply  confine  myself  entirely  to  tliis  i)reliminary  inciuiry. 

I  deny  the  jurisdiction  of  the  commission,  on  the  ground  that  the 
claimants  are  not  "British  suhjocts,"  in  the  sense  in  which  these 
terms  are  used  in  the  convention,  and,  consequently,  they  have  no 
right  to  i)resent  for  the  decision  of  tliis  commission  a  claim  against 
the  United  States.  1  am  glad  to  see  the  claimants  present,  and  I  hope 
they  will  listen  attentively  to  the  argument,  for,  besides  satisfying  the 
commissioners,  I  shall  be  disappointed  if,  by  the  reasons  I  shall  ad- 
vance, and  the  authorities  I  shall  cite,  I  do  not  convince  the  claimants 
themselves,  that  they  will  have  no  just  ground  for  dissatisfaction  with 
the  decision,  to  which  I  feel  confident  the  commissioners  must  come — 
namely,  that  the  claimants  are  not  entitled  to  be  heard  by  this  commis- 
sion as  "British  subjects,"  being  domiciled  citizens  of  Mexico,  and  by 
tlie  law  of  nations  invested  with  the  national  character  of  that  country. 

In  order,  however,  to  a  fair  understanding  of  the  manner  ir.  which 
this  question  arises,  it  may  be  well  to  state  the  facts  as  they  appear 
from  the  memorial  of  the  claimants  themselves. 

This  is  a  claim  presented  on  the  part  of  the  British  government  in 
favor  of  the  Messrs.  Laurent,  residents  of  Mexico,  who  claim  indem- 
nity from  the  United  States  for  the  confiscation  as  prize  of  war,  of  a 
debt,  owing  by  them  to  the  government  of  Mexico. 

These  claimants  represent  that  they  are  resident  merchants  and 
traders  in  the  city  of  Mexico,  and  that  they  had  been*establis^hed  there 
eighteen  years  in  that  capacity,  previous  to  1847.  During  that  year 
they  further  state  that  a  law  was  passed  by  the  Mexican  Congress, 
authorizing  the  raising  of  fifteen  millions  of  dollars  by  the  hypotheca- 
tion or  sale  of  church  property.  Afterwards,  in  the  same  year,  the 
Congress,  bylaw,  gave  extraordinary  powers  to  the  executive  authority 
to  raise  immediately  five  millions  by  the  sale  of  the  said  property. 
The  house  occupied  by  the  claimants  belonged  to  the  church,  and  they 
being  notified  that  it  was  to  be  sold,  determined  to  purchase  it.  The 
Mexican  government  accepted  their  proposal,  and  an  agreement  was 
drawn  up,  by  which  the  claimants  undertook  to  pay    a  specified 


■t 


I 


124 


ADJUSTMENT  OF  CLAIMS   UNDER   THE 


!i 


I!      :     ill 
i  II 


amount,  in  different  payments,  for  which  the  government  was  to  trans- 
fer to  them  the  ownership  of  the  house,  with  tlie  proper  muniments  of 
title.  Tlie  government  ordered  the  contract  to  he  properly  drawn  up 
and  duly  executed  hy  its  authorized  officer.  It  was  finally  signed  by 
the  claimants,  and  the  money  deposited  in  tlie  hands  of  a  hanker  to 
await  the  execution  of  the  contract  bv  the  government ;  but  in  conse- 
quence  of  some  inattention  of  those  charged  with  tliis  duty,  it  was  not 
executed  by  the  government.  In  this  state  of  tlie  matter  a  revolu- 
tion occurred,  and  the  new  President  was  autliorized  to  annul  the 
laws  for  the  sale  of  the  church  property,  wliich  he  did.  Remon- 
strances were  made  by  the  claimants  against  this  proceeding,  and 
while  negotiations  upon  this  subject  were  going  on,  the  tenant  of  the 
house,  under  whom  claimants  were  sub-tenants,  commenced  a  suit 
against  them  for  rent^  and  they  set  u})  their  purchase  from  the  gov- 
ernment in  defence,  and  a  satisfactory  arrfingement  was  confidently 
expected,  when  the  city  of  Mexico  was  taken  by  the  United  States 
forces.  Not  long  after  that  event,  the  military  secretary  of  the  com- 
manding general  notified  the  claimants  tliat  the  general  would  con- 
fiscate this  debt  owing  by  them,  as  prize  of  war,  it  being  property 
belonging  to  the  Mexican  government,  and  this  was  done  accordingly. 

The  general  gave  them  a  certificate  that  this  money  was  confiscated 
as  a  prize,  put  them  in  possession  of  the  house,  and  received  the  money. 
They  continued  to  enjoy  unmolested  possession  of  this  property  during 
the  occupation  of  the  country  by  the  United  States  forces.  After 
peace  was  Aiade,  and  the  government  had  been  surrendered  to  the 
Mexican  authorities,  the  church  then  claimed  this  property,  and  com- 
menced a  suit  for  it  in  the  Mexican  courts,  which,  by  appeal,  these 
claimants  carriea  up  to  the  highest  tribunal,  where  it  Avas  decided  that 
Mexico  would  not  acknowledge  the  acts  of  the  government  de  facto, 
represented  by  the  commaiding  general,  and  the  claimants  were  dis- 
possessed of  their  property ;  and  they  now  seek  remuneration  for  their 
losses  from  the  United  States. 

The  first  question  that  arises  upon  this  state  of  facts  is  this: 
Have  the  claimants  a  right  to  redress  at  the  hands  of  this  com- 
mission? I  expect  to  make  it  clear  to  the  mind  of  any  one  that 
by  the  law  of  nations,  which  must  give  the  rule  for  the  interpreta- 
tion of  the  convention,  the  claimants  are  citizens  of  Mexico,  and 
were  so  at  the  time  this  claim  arose  ;  that  thev  do  not  come  within  the 


III  I 


^L 


I  to  trans- 
liments  of 
drawn  up 
■iigned  by 
banker  to 
;  in  conse- 
it  was  not 
a  revolu- 
annul  the 
Remon- 
ding,  and 
ant  of  the 
;ed  a  suit 
I  the  gov- 
onfidently 
ited  States 
f  the  coni- 
kvould  cou- 
r  property 
jcordingly. 
confiscated 
le  money, 
ty  during 
After 
xl  to  the 
and  corn- 
eal, these 
jcided  that 
t  de  facto, 
were  dis- 
for  their 


s. 


I 


is   this : 
Ithis   corn- 
one  that 
iterpreta- 
'Aco,   and 
rithin  the 


CONVENTION   WITH   GREAT   BRITAIN. 


J  25 


■ 


y 


meaning  of  the  words  '-British  subjects,"  as  these  terms  are  used  in 
the  convention  ;  and  that,  therefore,  tiiis  commission  has  no  juris- 
diction of  the  case. 

The  counsel  for  the  British  government  has  presented  to  the  com- 
missioners the  hardship  to  tlie  claimants  if  this  proposition  should  be 
maintained.  Whatever  hardship  tliere  may  be,  the  government  of  the 
United  States  is  in  no  way  chargeable  with  it.  The  claimants  went  to 
that  country  for  the  advantages  which  it  held  out  to  them,  and  they 
must  take  also  the  disadvantages  of  a  residence  there,  more  especially 
when  they  continue  to  adhere  to,  and  give  the  benefit  of  their  capital 
and  industry  to,  the  governmcBt  of  that  country  in  time  of  war. 

But,  the  counsel  says,  the  government  of  the  United  States  has  paid 
ii  Frenchman  for  losses  sustained  in  Mexico  under  like  circumstances, 
and  hence  this  commission  ought  to  follow  this  example.  If  it  is  true 
tliat  the  government  did  pay  a  Frenchman  for  his  losses  in  Mexico,  of 
wliicli  no  proof  is  oftei'ed,  to  ask  this  commission  to  be  guided  by  that 
example  would  not  be  unlike  asking  a  prize  court  to  refuse  to  condemn 
a  vessel  found  trading  with  the  enemy  because  the  sovereign  authority 
in  anotlier  case  had  given  permission  to  trade.  A  nation  may  dilute 
its  power,  and  exempt  any  person  from  the  effects  of  his  enemy-char- 
acter, but  it  is  not  permitted  to  this  commission  to  do  so.  Its  duty  is  to 
be  governed  by  the  law  of  nations,  and  it  is  not  at  liberty  to  assume 
for  the  United  States  the  exercise  of  a  power  which  every  nation 
regards  as  a  high  attribute  of  sovereignty,  and  which  is  there  confided 
to  Congress.  . 

The  memorial  of  the  claimants  states  that  they  are  now  residents 
in  the  city  of  Mexico  ;  that  they  were  residing  there  at  the  time  this 
claim  arose  in  184T,  and  had  been  during  many  years  previous.  War 
between  the  United  States  and  Mexico  was  legalized  in  May,  1846, 
and  more  than  a  year  after  this  event  they  were  still  residents  of  Mexico, 
giving  to  that  country  the  benefit  of  their  industry  and  capital ;  and 
when  the  city  of  Mexico  was  taken  by  the  United  States  forces,  they 
were  found  engaged  in  business,  like  any  other  Mexican  citizens.  The 
question  is,  to  what  government  did  they  owe  allegiance,  and  conse- 
queutly  under  whose  protection  were  they  Avhen  the  transaction  took 
place  witli  the  consequences  of  which  they  now  seek  to  charge  the 
United  States. 

The  principles  of  international  law,  recognized  by  the  British  court 


126 


ADJUSTMENT    OP  CLAIMS   UNDER   THE 


i    I 


of  adruiraltv,  when  applied  to  persons  in  the  condition  of  these  claim- 
ants, affix  to  them  the  national  character  of  Mexicans,  and  their  pro- 
perty found  in  Mexico  is  snhject  to  all  the  consequences  that  attach 
to  the  property  of  native-horn  citizens  resident  there.  Redress  for 
any  wrongs  done  to  them  or  their  property  must  then  he  sought  in  the 
tribunals  of  that  country  or  through  its  government.  The  seizure  by 
the  United  States  of  any  j)roperiy  belonging  to  the  claimants,  which 
might  have  been  found  during  the  war  on  the  high  seas,  where  Eng- 
land enjoys  a  common  jurisdiction  with  other  nations,  could  not  have 
been  inquired  into  by  her,  nor  by  any  tribunal  in  which  she  could  take 
part;  for  a  still  stronger  reason,  then,  she  can  have  no  voice  in  deci- 
ding a  question  in  regard  to  property^  which  arose  wholly  within  the 
enemy's  country,  and  where  England  had  no  sort  of  jurisdiction, 
cither  over  the  territory,  the  persons,  or  property  of  the  claimants. 

But  these  principles  do  not  rest  upon  general  reasoning  alone. 
They  have  long  been  considered  fundamental  doctrines  of  international 
law,  and  have  had  the  sanction  of  the  British  court  of  admiralty  for 
the  last  half  century,  an  I  shall  proceed  to  show. 

In  the  case  of  the  "Indian  Chief,"  tho  distinguished  judge,  Sir 
William  Scott,  said,  "  No  position  is  more  established  than  this,  that 
if  a  person  goes  into  another  country,  and  engages  in  trade  and  re- 
sides there,  he  is  by  the  law  of  nations  to  be  considered  a  merchant  of 
that  country." 

The  case  of  the  ship  "  President,"  liowever,  illustrates  this  princi- 
ple more  strongly.  England  and  Holland  were  at  war,  and  the  Cape 
of  Good  Hope  was  in  the  possession  of  Holland.  This  ship  was  taken 
on  a  voyage  from  the  (Jape  to  Europe,  and  was  claimed  by  Mr.  Elms- 
lie,  as  an  American  citizen  residing  at  the  Cape.  It  appeared  that 
he  was  a  Briti.sh-born  subject  who  had  lived  in  America,  and  had  gone 
to  the  Cape  during  a  I'ormer  war,  and  while  the  British  had  possession 
of  it.  He  continued  to  reside  there  after  it  again  fell  into  the  hands 
of  Holland,  and  it  was  during  this  last  residence  that  the  vessel  was 
seized.  Sir  W.  Scott  says,  in  this  case,  "I  think  the  court  must 
surrender  every  principle  on  which  it  has  acted  in  considering  the  ques- 
tion of  national  character,  if  it  was  to  restore  this  vessel.  The  claim- 
ant is  described  to  have  been  many  years  settled  at  the  Cape,  with  an 
established  house  of  trade  and  as  a  merchant  of  that  place,  and  must 
be  taken  as  a  siihjed  of  the  enemy's  country." 


CONVENTION   WITH    GREAT    BRITAIN. 


127 


?se  claira- 
their  pro- 
mt attach 
?dre8s  for 
^ht  in  the 
■ioizure  by 
its,  which 
lere  Eng- 
l  not  have 
30uhl  take 
;e  in  deci- 
(vithin  the 
risdiction, 
imants. 
ng  alone, 
crnational 
niralty  for 

judge,  8ir 

this,  that 

le  and  re- 

erchant  of 

is  princi- 
tlie  Cape 

was  taken 
:r.  Elms- 

■ared  that 
had  gone 
)ossession 
;he  hands 
essel  was 

mrt  mnst 

the  (iues- 

he  claim- 

with  an 

and  must 


These  two  cases  abundantly  establish  the  principle  that  every  per- 
son is,  by  the  late  of  nations,  considered  as  belonging  to,  and  is  a  citi- 
zen or  subject  of,  that  country  whore  he  has  his  domicil,  whatever 
may  be  his  native  country. 

But  it  may  be  useftil  to  cite  yet  other  cases.     In  the  case  of  the  ship 
"Ann"  (1  Dod.  Adm.  Rep.,)  it  is  distinctly  settled  that,  in  order 
to  enjoy   the    benefit  of  being  a  ''  Jirifinh  subject,"  in  the  sense  in 
which  the  counsel  for  her  Majesty's  government  now  seeks  to  interpret 
these  terms,   "the  person  must  be  clearly  and  habitually  a  British 
subject,  having  no  intermixture  of  foreign  commercial  character;"   that 
was  the  case  of  a  vessel  seized  in  the  river  Thames,  in  August,  1812. 
The  master  was  a  British-born  subject,  and  his  wife  and  family  still 
resided  in  Scotland.     He  had  resided  in  America,  and  was  naturalized, 
as  he  alleged,  for  commerce  only,  in   order  to  purchase  a  vessel  and 
trade  there.     An  order  in  council  directed  that  all  vessels  under  the 
the  flag  of  the  United  States,  which  were  bond  Jide  the  property  of 
his  Majesty's  subjects,  purchased  before  the  declaration  of  war  by  the 
United  States,  should  be  restored  ;  and  the  question  was  whether  the 
master  of  the  "  Ann"  was  a  British  subject.     On  this  point,  Sir  W. 
Scott  observes:  "It  is  true  he  had  no  house,  and  Wijs  there  (in  the 
United  States)  as  a  single  man .     He  cannot  take  the  advantage  of  both 
characters  at  the  same  time.     He  has  been  sailing  out  of  American 
ports.     It  is  (niite  impossible  he  can  be  protected  under  the  order  in 
council,  which  applies  only«  to  those  who  are  clearly  and  habitually 
Bi'itish  subjects,  having  no  intermixture  of  fcyrcign  commercial  character. 
It  never  could  be  the  intention  of  his  Majesty's  government  that  the 
benefit  of  this  order  should  be  extended  to  a  person  who  has  thrown 
off  his  allegiance  and  estranged  himself  from  his  British  character,  as 
far  as  his  ^jwn  volition  and  act  could  do  ;"  and  his  ship  was  not  re- 
stored, but  condemned  on  the  ground  that  he  was  not  a  British  sub- 
ject, but  a  citizen  of  the  United  States.     There  could  be  no  doubt  that, 
according  to  both  the  common  law  and  the  naturalization  acts  of 
England,  he  was  a  British  subject,  yet  the  court  declined  in  the  most 
emphatic  manner  to  interpret  the  words  "British  subject"  used  in 
the  order  in  council  by  the  municipal  law,  but  the  law  of  nations  was 
recognized  as  furnisliing  the  rule.     He  had  changed  his  national  char- 
acter, his  domicil  was  in  the  United  States,  and  it  was  held  that  he  was 
to  be  regarded  as  a  citizen  of  that  country. 


PI 


128 


ADJUSTMENT   OF  CLAIMS  UNDER   THE 


According  to  the  rule  here  laid  down,  the  claimants,  who  now  seek 
to  bring  their  claim  before  this  commission,  are  Mexicans  by  allegiance 
and  character,  and  theirs  is  a  Mexican  claim. 

This  commission  was  instituted  to  settle  claims  on  behalf  of  "cor- 
porations, companies,  or  private  individuals,  subjects  of  her  Britannic 
Majesty,  upon  the  government  of  the  United  States,"  and  the  claims 
of  citizens  of  the  latter  upon  the  former  government ;  but  if  the  opinion 
of  Sir  William  Scott  upon  the  meaning  of  the  same  words  used  in  the 
order  in  council  is  to  be  followed,  in  order  to  enjoy  the  privilege  of 
coming  here  and  presenting  a  claim  as  a  "British  subject,"  the 
claimant  must  be  "  clearly  and  habitually  a  British  subject,  having  no 
intermixture  of  foreign  commercial  character." 

This  is  a  judicial  construction  of  the  words  "British  subject," 
used  precisely  in  the  sense  in  which  those  terms  are  employed  in  the 
convention.  It  may,  however,  be  satisfactory  to  the  commissioners 
for  me  to  state  that  a  similar  construction  has  been  given  to  them  by 
his  Majesty's  privy  council  in  interpreting  the  treaty  of  1814  between 
Great  Britain  and  France,  for  the  settlement  of  claims  of  British 
subjects  upon  the  French  government. 

At  the  peace  of  Paris,  in  1814,  a  treaty  was  entered  into,  by  which 
the  French  government  agreed  to  pay  for  j)roi)erty,  debts,  &c.,  belong- 
ing to  Britisli  subjects,  and  imduly  confiscated,  subsequent  to  the 
Ist  of  January,  1793.  Tliis  treaty  was  confirmed  by  conventions  in 
1815,  and  commissions  were  organized  fqr  carrying  them  into  effect. 
An  English  commission  was  charged  with  the  distribution  of  the 
money  set  apart  for  English  claimants  ;  and  an  act  of  parliament  pro- 
vided that,  should  the  claimant  be  dissatisfied  with  the  award  of  the 
commissioners,  he  sliould  be  at  liberty  to  appeal  to  his  Majesty's 
privy  council. 

An  appeal  was  taken  in  Drummond's  case,  which  is  reported  in  2 
Knapp'8  Privy  Council  Iteports,  and  it  is  to  that  case  that  I  wish  to 
direct  the  attention  of  the  commissioners.  Drummond's  estate  had 
been  confiscated  in  France.  He  was  the  grandson  of  John  Rrum- 
mond,  Lord  Forth,  a  natural-born  British  subject.  By  the  statutes 
of  7  Anne,  c.  5;  4  Geo.  11,  c.  21;  and  li)  Geo.  Ill,  c.  21,  the 
children  and  grandchildren  of  natural-born  13ritish  subjects,  although 
they  may  be  born  out  of  the  realm,  are  declared  to  be  "British  sub- 
jects" to  all  ^'intents,  co7id ructions,  and  purposes  whatsoever;"  and 


■I 


CONVENTION   WITH   GREAT   BRITAIN. 


129 


under  these  acts,  Drurauiond,  notwithstanding  he  was  born  abroad, 
and  had  generally  lived  in  France,  was  clearly  a  British  subject. 
The  commissioners,  however,  erroneously  believed  that  his  grand- 
father had  been  included  in  the  Scotch  act  of  attainder,  and  tliat  he 
was  hence  not  a  British  subject,  and  rejected  his  claim  chiefly  on  that 
ground.  From  this  decision  he  appealed  to  the  privy  council,  and  the 
(question  was,  whether  Drunimond  was  a  British  subject  within  the 
meaning  of  the  treaty. 

The  arguments  and  decision  in  this  case  will  not  only  show  clearly 
the  sense  in  which  the  terms  "British  subject"  are  used  in  the  treaty 
under  which  this  commission  is  sitting,  but  they  will  demonstrate  beyond 
doubt  the  Mexican  character  of  the  Messrs.  Laurent,  the  claimants  in 
this  case.  The  joint  argument  of  the  King's  advocate.  Sir  Herbert 
Jenner,  and  the  attorney  general.  Sir  John,  now  Lord  Chief  Justice, 
Campbell,  deserves  to  have  great  influence  in  determining  the  ques- 
tion before  the  commission,  as  well  from  the  soundness  of  the  reason- 
ing as  from  the  distinguished  position  and  reputation  of  its  authors. 

They  say:  "Admitting  that  the  grandfather  of  Drummond  was  not 
afFectedby  the  act  of  attainder,  and  that,  technically  speaking,  he  was, 
according  to  the  statutes  of  this  country,  a  British  subject ;  still  trea- 
ties must  he  interpreted  according  to  the  law  of  nations,  which  requires 
words  to  betaken  in  their  ordinary  meaning,  not  in  the  artificial  sense 
which  may  have  been  imposed  upon  them  by  the  particular  statutes  of  a 
particular  nation.  When,  therefore,  a  treaty  speaks  of  the  subjects  of 
any  nation,  it  must  mean  those  tvho  are  actualbj  and  effectually  tinder  its 
rule  and  government." 

In  another  part  of  the  argument  they  say:  "It  never  could  have 
been  tlic  intention  of  the  i'ramers  of  tliis  treaty  tliat  the  expression, 
British  subjects,  should  include  persons  wlio  are  also  Frencli  subjects. 
There  is  no  doctrine  better  established  in  the  British  court,  than  that 
the  duties  of  allegiance  and  the  right  of  protection  are  inseparable, 
and  the  subject  who  is  entitled  to  protection  is  also  bound  to  render 
allegiance ;  yet  if  Drummond  had  served  in  the  French  army  against 
Great  Britain,  and  been  taken  prisoner,  would  any  one  have  contended 
that  he  was  guilty  of  liigh  treason,  and  liable  to  be  executed?  If, 
however,  he  was  entitled  to  the  protection  of  a  British  subject,  he 
must  be  considered  as  having  been  liable  to  the  consequences  of  the 
breach  of  his  duties  as  one." 

9 


4\l 


T^^ 


w 


I'M  1 1 
i 


130 


ADJUStMENT   OP  CLAIMS   UNDER  THE 


In  delivering  tlie  judgment  of  the  privy  council,  the  vice  chancellor 
said :  ''Drumniond  was  a  British  subject.  But  though,  formally  and 
literally,  by  the  law  of  Great  Britain,  he  was  a  British  subject,  the 
question  is,  whether  he  was  a  British  subject  within  the  meaning  of 
the  treaty.  He  might  be  a  British  subject,  and  he  might  also  be  a 
French  subject,  and  if  he  was  a  French  subject,  then  no  act  done 
towards  him  by  the  government  of  France  would  be  considered  an 
illegal  act  within  the  meaning  of  the  treaty,  which  could  only  mean 
to  provide  indemnity  where  the  act  done  towards  the  British  subject 
was  illegal  by  reason  of  the  law  of  nations."  This  is  precisely  the 
case  before  the  commissioners.  By  the  terms  "British  subjects,"  used 
in  this  convention,  as  in  the  treaty  with  France,  it  was  only  meant  to 
provide  indemnity  to  those  persons  who  were,  by  the  lato  of  nations,  at 
the  time  of  the  injury  comjjlained  of,  subjects  of  Great  Britain.  That 
law  does  not  recognize  those  persons  as  a  nation's  subjects  who  are 
living  in  another  country,  but  it  regards  them  as  subjects  of  that 
country  where  they  are  domiciled.  Crummond  had  been  living  in 
France,  as  the  Laurents  havi^  been  in  Mexico,  and  their  lordships 
finally  said,  "that  Drummond  was  technically  a  British  subject  in  the 
years  1'792  and  1794,  yet  he  was  also  in  form  and  substance  a  French 
subject,  domiciled  in  France,  with  all  the  marks  and  attributes  of  a 
French  character,  and  was  not  entitled  to  indemnity." 

The  counsel  of  the  British  government  has  said  this  case  does  not 
apply,  because  the  Laurents  were  not  naturalized  Mexican  citizens. 
The  laws  of  that  country  not  authorizing  the  naturalization  of  Pro- 
testants, it  is  said  they  could  not  have  become  citizens,  even  if  they 
had  so  desired.  The  decision  in  Drummond 's  case  does  not  require 
that  they  should  be  naturalized  citizens,  it  only  requires  that  they 
should  be  domiciled  there.  It  is  of  no  importance  whether  they  en- 
j  oyed  the  privileges  accorded  to  native-born  citizens  or  not ;  that  is  a 
muricipal  question  altogether.  The  law  of  nations  does  not  look  to 
see  who,  by  the  municipal  law,  enjoys  the  mo.st  complete  rights  of  citi- 
zenship, or  who  possesses  them  to  a  less  extent,  but  only  to  discover 
who  are  the  persons  domiciled  in  the  country,  and  they  are  declared 
to  belong  to  it,  and  take  their  national  character  from  it.  But,  in 
point  of  fact,  the  claimants  were,  to  some  extent,  naturalized  citizens. 

Tlie  counsel  for  the  British  government,  in  order  to  show  their  British 
character,  has  producetl  here  their  annual  oath,  or  obligation,  by  which 


H 


-M 


CONVENTION    WITH    GREAT    BRITAIN. 


131 


chancellor 
inally  and 
ibject,  the 
leaning  of 
;  also  be  a 
)  act  (lone 
ndered  an 
only  mean 
ish  snbject 
ecisely  the 
jcts,"  used 
y  meant  to 
'  nations,  at 
xm.     That 
5ts  who  are 
cts  of  that 
I  living  in 
r  lordships 
bject  in  the 
fe  a  French 
ibutea  of  a 

se  does  not 
in  citizens, 
ion  of  Pro- 
ven if  they 
not  require 
that  they 
er  they  en- 
that  is  a 
not  look  to 
;hts  of  citi- 
to  discover 
ire  declared 
t.     But,  in 
;ed  citizens, 
heir  British 
n,  by  which 


they  solemnly  undertook  to  subject  themselves  to  the  laws  of  the 
country  ;  and  for  this  undertaking  they  were  i)ermitted  to  live  there, 
to  possess  real  property,  and  trade  and  enjoy  the  advantages  of  the 
government.  This  they  did  for  eighteen  years  in  succession.  Now 
I  maintain  that  this  was  naturalization.  Perhaps  it  did  not  give  them 
all  the  rights  of  native-born  Mexicans,  neither  do  the  laws  of  any 
country  give  all  the  rights  of  native  citizens  to  those  who  arc  natu- 
I  ralized,  but  in  this  case  the  municipal  law  accorded  to  them  the 
important  rights  of  citizens  of  the  country. 

The  eifect  of  domicil  in  changing  the  national  character  of  the  citizen 
or  subject  has  been  very  strikingly  illustrated  in  Conway's  case,  re- 
ported also  in  2  Kapp's  Privy  Council  Repoits,  to  which  I  have  already 
referred.  It  was  there  lield,  ''that  a  foreigner  domiciled  in  England 
at  the  period  of  the  confiscation  of  his  property  by  the  government  of 
Franco,  from  which  country  he  immigrated,  and  settled  in  England,, 
was  entitled  to  claim  compensation  for  his  losses,  under  a  treaty  pro- 
viding such  compensation  to  British  subjects."  This  is  a  declaration, 
by  the  highest  authority,  that  a  foreigner  domiciled  in  England  be- 
comes invested  with  the  British  character.  It  is  not  said  that  he  is 
entitled  to  be  admitted  to  all  the  rights  that  any  British  subject  may 
enjoy.  That  can  be  affirmed  of  only  a  limited  number  of  those  who 
are  native-born,  and  have  always  resided  within  English  jurisdiction ; 
but  it  establishes  the  exact  principle  for  which  I  am  contending.  If 
a  Mexican,  for  example,  by  residence  in  England  may  become  a  British 
subject,  as  the  privy  council  says  he  can,  may  we  not  reasonably  infer 
that  a  British  subject  residing  in  Mexico  may,  upon  the  same  principle, 
become  a  subject  of  that  country. 

It  seems  to  me  that,  taking  the  decision  of  the  privy  council  in 
Conway's  case  as  law,  there  is  no  escape  from  this  conclusion.  If 
there  is  not,  then  the  Laurents,  by  being  domiciled  in  Mexico,  ceased 
to  be  clothed  with  the  nationality  of  Great  Britain,  and  became  citizens 
of  Mexico. 

There  is  a  remark.able  uniformity  on  this  point  in  the  decisions  of 
the  British  courts,  as  will  be  further  shown  by  tlie  case  reported  in  3 
Bos.  and  Puller,  p.  114 — Lord  Alvanley,  chief  justice.  In  that  case,  he 
observed:  "The  question  is,  whether  a  man  who  resides  under  the 
allegiance  and  protection  of  a  hostile  state  for  all  commercial  purposes, 
is  not  to  be  considered  to  all  civil  purposes  as  much  an  alien  enemy  as 


^ 


:fh 


1^ 


132 


ADJUSTMENT    OF   CLAIMS   UNDER   THE 


U'  }to  wore  1)orn  there.  If  we  were  to  liold  tliat  he  wivh  not,  we  imist 
contratliet  all  the  iiiotleni  authorities  on  thi.s  suhjeet.  That  an  Eii^IIhIi- 
inan,  from  whom  I'rance  deriveH  all  the  benefit  which  can  be  derived 
from  a  natnral-l»orn  Nuhjeet  of  France,  should  l)e  entitled  to  more 
rights  than  a  native  Frenclinian,  would  he  a  monstrous  jiroposition. 
While  the  Ktujlinhmnn  veHuh'fi  in  the  hoslilr  country  he  is  a  suhjeet  of  that 
countnj;  and  it  has  been  held  that  he  is  entitled  to  all  the  privileges 
of  a  neutral  country  while  resident  in  the  neutral  country." 

But  the  counsel  for  the  liriti.sh  government  replies,  "whftt  the 
learned  chief  justice  says  \v  very  true,  but  it  aj)i)lies  to  the  remedy." 
I  admit  the  party  was  in  search  of  a  remedy,  but  his  national  charac- 
ter had  first  to  be  ascertained  before  it  could  be  decided  that  he  was 
entitled  to  it,  and  for  this  ])urpose  it  was  that  the  learned  judge  an- 
nounced the  great  principle  to  which  I  have  referred.  It  is  a  general 
truth  discovered  by  the  reason  and  experience  of  nations,  and  it  will 
endure  as  long  as  civilization  exists  among  men.  How  else  could 
belligerents  ever  settle  their  <]uarrels,  if  the  treaty  of  peace  is  not 
to  bind  all  the  parties  to  the  war.  The  adventurers  from  neutral 
nations  who  choose  to  take  part  in  it  could  continue  to  bring  up  terms 
of  peace  for  themselves  during  an  indefinite  ])eriod,  and  by  entertain- 
ing their  propositions,  you  would  thus  offer  a  bounty  for  their  conduct, 
and  give  them  the  advantages  of  both  the  neutral  and  belligerent 
country,  with  the  disadvantages  of  neither.  The  law  of  nations  makes 
these  claimants  as  much  parties  to  this  war  as  if  they  had  been  in 
the  ranks  of  the  army ;  and  to  maintain  that  they  are  nevertheless  to 
have  the  right  of  neutials  is,  in  the  language  of  Chief  Justice  Alvan- 
ley,  a  "monstrous  proposition." 

The  Laurents  were,  if  any  regard  is  paid  to  tlie  decision  of  the  chief 
justice,  citizens  of  Mexico  before  tlie  war,  as  well  as  during  its  con- 
tinuance, and  are  so  at  this  moment. 

It  would  seem  to  be  imi)0ssible,  in  the  face  of  these  authorities,  to 
resist  the  concliision,  that  where  nations  are  concerned  the  place  of 
domicil  is  the  true  place  of  which  a  })erson  is  a  citizen.  It  is  not  on- 
ly so  in  time  of  war,  but  Lord  Alvaiiley  has  said  it  is  so  in  time  of 
peace.  This  would  be  established  as  the  rule  in  the  time  of  war,  if  the 
question  rested  solely  on  the  case  of  Alberscht  v.  Sussman  (2  Vesey 
and  Bcame,  323.  In  that  case  it  was  decided  that  an  alien  carrying 
on  trade  in  an  enemy's  country,  though  resident  there  also  in  the 


wo  must 
Enj^liwh- 
0  derived 
to  more 
)po8ition. 
Qct  of  that 
)rivilege8 

what  the 
remedy." 
al  clmrac- 
at  ho  was 
judge  an- 
a  general 
md  it  will 
else  could 
ice  is  not 
m  neutral 
;  uj)  terms 
entertain- 
r  conduct, 
jolligerent 
ons  makes 
d  been  in 
theless  to 
ice  Alvan- 

the  chief 
ig  its  con- 

lorities,  to 
le  place  of 
is  not  on- 
iu  time  of 
war,  if  the 
(2  Vesey 
n  carrying 
dso  in  the 


fi 


; 


CONVENTION   WITH   GREAT   BRITAIN. 


133 


character  of  consul  of  a  notitral  state,  was  held  to  be  an  alien  enemy, 
and  UH  such  disabled  to  sue,  and  his  property  liable  to  confiscation. 
Now,  if  a  British  consul,  residing  in  Mexico  during  tlie  war  with  the 
United  States,  was  disabled  to  sue  as  a  neutral  British  subject  in  the 
courts  of  the  United  States,  and  his  pn»perty  was  liabh*  to  (loiitiscation, 
the  case  of  the  Lau.ents  can  admit  no  doubt.  They  were  Mexican  citi- 
zens, and  liable  to  »'li  the  obligations  and  disabilities  of  native-born 
citizens  of  that  country,  and  they  must  seek  redress  for  any  grievance 
through  the  government  under  which  they  liave  chosen  t(  live. 

But  if.  national  law,  as  declared  by  British  courts,  is  to  liave  any 
weight  with  this  commission,  it  must  decide  tluit  they  are  Mexican 
citizens  now,  at  this  moment.     They  state  tluit  they  Ktiil  reside  tliere; 
and  Sir  William  Scott  dearly  .'stablished,  in  the  case  of  the ''Match- 
less," that  this  was  sufficient  to  clir.nge  the  national  character,  and  con- 
stitute citizenship.     The  case  of  the  '"Matchless"  arose  in  182'2,  and 
will  1)0  found  reported  in  I  Hagg.  Ad.  Rep.     It  was  an  ap))eal  from  a 
sentence  pronounced  in   the  vice-admiralty  court  of  Newfoundland, 
condemning  this  vessel  for  an  alleged  violation  of  the  navigation  laws. 
The  question  turned  principally  upon  the  second  section  of  the  act, 
which  provides  "  That  no  olicn  fihall  cxerciw  the  trade  or  occupation  of 
a  factor  or  merchant  in  the  plantations,"  d'c.     The  claimant  was  des- 
cribed as  a  British-born  subject,  but  at  that  time  residing  in  Boston. 
Lord  Stowell  asks  the  (juestion:  "Is  such  a  person  to  bo  considered  a 
merchant  of  Great  Britain,  or  a  merchant  of  America?    Upon  such  a 
(question  it  has  certainly  been  laid  down,  by  accredited  writers,  on  gen- 
oral  law,  and  upon  grounds  apparently  not  unreasonable,  that  if  a  mer- 
chant expatriates  himself  as  a  merchant  to  carry  on  the  trade  of  another 
country,  exporting  its  produce,  paying  its  taxes,  employing  its  people, 
and  expending  his  spirit,  his  industry,  and  his  capital  in  its  service,  he  is 
to  be  deemed  a  merchant  of  that  country,  nottoithstanding  he  may  in  some 
respects  be  less  favored  in  that  country  than  one  of  its  native  svJtjects.     Our 
own  country,  which  is  charged  with  holding  the  doctrine  of  unextin- 
guishable  allegiance  more  tenaciously  than  others,  is  no  stranger  to 
the  application  of  this  rule.     Its  highest  tribunals,  which  adjudicate 
the  national   character  of  property,   apply  it  universally.      They 
privilege  persons  residing  in  a  neutral   country  to  trade  as   freely 
with  the  enemy  of  Great  Britain  in  war  as  the  native  subjects  of 
that  neutral  country,  although  our  own  resident  merchants  cannot, 
without  the   special   permission   of  the    crown  ;    and   they   confis- 


'  f-' 


?! 


s"l 


I 


134 


ADJUSTMENT   OP   CLAIMS   UNDER  THE 


^ 


M 
•  ill 


cate  the  property  of  an  English  subject  resident  in  any  enemy's 
country  as  freely  as  that  of  a  native  subject."  Lord  Stowell  also  cites 
Lord  Kenyon  as  having  declared  that  persons  residing  in  this  country 
must,  for  the  purposes  of  trade,  be  considered  as  belonging  to  this 
country ;  and  he  further  states  that,  in  Wilson  v.  Marryatt  (1  Bos. 
and  Pull,)  it  was  settled,  "that  a  British-born  subject  residing  in 
America  might  trade  to  the  East  Indies,  though  a  British  subject 
could  not.  And,  surely,  if  the  acquired  residence  takes  off  the  inca- 
pacities, he  has  no  right  to  complain  if  it  fixes  upon  him  some  disa- 
bilities of  its  own."  Under  the  shelter  of  these  authorities,  his  lord- 
ship continues,  ''I  should  incline  to  hold,  if  I  am  compelled  to  face 
the  general  question,  that  a  British  merchant  resident  in  a  foreign 
country,  must  part  with  some  commercial  privileges,  which  he  would 
preserve  if  resident  at  homo,  whilst  he  acquires  others  by  residence 
abroad."  "In  this  transaction  the  claimant  must  be  taken  to  be  an 
American  and  not  a  British  merchant." 

I  would  beg  here  to  call  the  particular  attention  of  the  commis- 
sioners to  the  language  of  the  treaty  of  commerce  between  Great 
Britain  and  the  United  States,  of  the  3d  July,  1815,  in  connexion  with 
the  decision  in  this  case  of  Wilson  v.  Marryatt.  The  3d  article  of 
that  treaty  says,  "that  the  citizens  of  the  United  States  may  freely 
carry  on  trade  between  the  said  principal  settlements  (in  the  East  In- 
dies) and  the  United  States."  This  trade,  it  will  be  remembered,  was 
prohibited  to  British  subjects,  yet  Sir  William  Scott  said,  a  British 
subject  residing  in  the  United  States  could  carry  it  on.  Does  this  not 
prove  that  the  Englishman  changed  his  national  character,  by  being 
domiciled  in  the  United  States,  and  by  the  law  of  nations  became  a 
citizen  of  that  country? 

Nova  if  there  is  any  respect  to  be  paid  to  the  English  courts  of  ad- 
miralty, this  commission  cannot  refuse  to  declare,  on  the  authority  of 
this  case  alone,  that  these  claimants  who  come  here  from  Mexico  arc 
not  entitled  to  be  heard. 

I  submit  that  the  authorities  I  have  produced  settle  this  (luestion 
upon  the  broad  and  impregnable  principles  of  the  law  of  nations,  as 
declared  by  the  British  courts  and  adoi)ted  in  the  policy  of  the  govern- 
ment for  a  long  period. 

These  principles  apply  not  only  to  these  claimants,  but  to  all  persons 
whose  claims  arose  while  they  were  domiciled  in  Mexico.     It  cannot 


W^'' 


CONVENTION   WITH   GREAT  BRITAIN. 


135 


be  supposed  that  the  two  governments,  in  framing  this  convention, 
meant  that  you  should  look  to  the  municipal  law  of  either  country  for 
the  definition  of  the  words  "citizen"  or  "suhject ;"  on  the  contrary, 
it  was  undoubtedly  considered  that  you  would  determine  these  ques- 
tions by  that  interna'tional  law  which  is  always  understood  as  furnish- 
ing the  rule  of  interpretation,  in  the  construction  of  treaties.  They 
never  intended  that  the  vague  common  law  prerogative  of  perpetual 
allegiance  from  the  subject,  founded  solely  on  an  imperfect  common 
law  right  of  the  crown,  should  give  the  construction  to  the  words 
"British  subject,"  used  in  this  treaty.  No  such  technical  and  local 
meaning  was  ever  in  the  mind  of  the  negotiators.  I  am  not  disposed 
to  go  into  any  lengthened  discussion  of  this  doctrine  of  allegiance, 
but  I  must  be  permitted  to  observe  that,  whatever  may  be  the  relation 
of  the  subject  of  Great  Britain  to  the  crown,  it  rests  wholly  on  the 
municipal  law  of  this  country,  and  forms  no  part  of  the  law  of  nations. 
It  is,  and  always  has  been  a  right  of  'mperfect  obligation  while  the 
subject  remained  beyond  the  nation's  jurisdiction ;  and  it  only  becomes 
a  perfect  right  by  his  return  to  his  native  country,  for  then  his  obli- 
gation to  the  place  of  his  birth  can  be  enforced.  Native  citizenship 
may  then  revive,  and  that  of  his  adoption  may  cease.  Hence  there 
need  be  no  conflict  between  this  perpetual  allegiance  or  gratitude,  as 
it  might  rather  be  termed,  which  the  subject  is  said  to  owe  to  the  land 
of  his  birth,  and  that  which  he  owes  to  the  country  of  his  domicil, 
and  to  which  the  law  of  nations  regards  him  as  belonging. 

In  the  construction  of  this  convention,  the  necessity  of  adopting  in- 
ternational law,  as  determining  the  country  of  which  one  is  a  citizen, 
is  shown  by  a  decision  of  the  lord  chancellor,  delivered  yesterday  in 
Lincoln's  Inn,  and  reported  in  the  London  Times  of  this  morning. 
The  case  is  entitled  Dawson  v.  Jay.  The  subject-matter  of  the  dis- 
pute was  the  custody  of  a  young  lady,  about  eleven  years  of  age. 
The  mother  was  an  American  woman,  and  her  father  was  a  English- 
man, but  he  became  a  naturalized  citizen  of  the  United  States.  They 
were  both  dead,  and  there  was  a  guardian  appointed  on  the  paternal 
and  maternal  side  in  different  States  in  America.  Her  maternal 
guardian  procured  an  injunction  of  the  supreme  court  of  New  York  to 
prevent  the  removal  of  the  child  to  England,  but  the  paternal  guardian 
evaded  the  service  of  it,  and  brought  the  young  lady  to  England ;  and 
the  question  was,  which  should  have  the  guardianship  of  her,  the 


i| 


136 


ADJUSTMENT  OF  CLAIMS  UNDER   THE 


I '  im 


■! 


paternal  guardian  and  uncle  praying  to  be  appointed  as  guardian  in 
England.  The  decision  was  in  favour  of  the  paternal  uncle,  but  we 
are  more  immediately  concerned  with  other  points  settled  by  this 
case.  The  lord  chancellor  declared,  that  ''although  the  father's 
naturalization  gave  him  the  privileges  of  an  American  citizen,  it  did 
not  absolve  him  from  the  duties,  or  deprive  him  of  the  rights,  of  a 
British  subject;  and  further,  that  the  infant^  although  born  in  the 
United  States  of  a  marriage  contracted  with  an  American  lady,  and 
having  an  American  domicil,  and  residing  there  during  the  first  ten 
years  or  thereabouts  of  her  life,  was  nevertheless  a  subject  of  the 
crown  of  England."  Now  it  will  not  be  denied  that  the  father,  child, 
and  mother  wore  citizens  of  the  United  States,  and  this  young  lady, 
as  such  citizen,  might  present  a  claim  to  this  commission  against 
England,  under  the  provisions  in  iavor  of  citizens  of  the  United 
States.  But  if  the  mimicipal  law  sense  of  the  term  ''British  subject," 
is  to  govern  in  the  construction  of  this  treaty,  slie  may  also  present  a 
claim  as  a  subject  of  Great  Britain  against  tlie  United  States.  Cer- 
tainly neither  the  negotiators  of  this  convention  nor  their  govern- 
ments meant  that  any  one  should  enjoy  the  advantage  of  being  a  citizen 
of  both  countries  at  the  same  time.  If  you  will  adopt  the  place  of  domicil 
as  the  country  of  which  the  person  is  a  citizen  or  subject,  there  can  be 
no  such  conflict,  for  no  person  can  at  the  same  time  have  more  than 
one  domicil.  This  is  an  ancient  and  well-established  principle  of 
international  law,  and  must  govern  the  commissioners  in  this  case. 

I  am  asked  by  the  counsel  for  her  majesty's  government,  whether  I 
would  maintain  that  a  British-born  subject  found  in  arms  against 
England  could  not  be  executed  for  treason.  It  is  not  necessary  to  the 
correct  decision  of  the  question  under  discussion  that  I  should  answer 
this  interrogatory ;  but  I  will  say,  however,  that  I  do  maintain  that 
very  proposition,  always  supposing  that  the  change  of  domicil  is 
made  in  good  I'aith.  There  must  be  fitness  in  point  of  time,  and 
fairness  of  intent,  and  publicity  of  the  act;  when  these  circumstances 
concur,  no  nation  would  now  be  justified  by  the  law  of  nations  in  exe- 
cuting for  treason  one  of  its  native-born  subjects  tcund  in  tlvj  military 
service  of  another  country  with  whicli  it  might  be  at  war.  In  main- 
taining this  proposition,  I  am  perfectly  aware  that  Sir  William  Scott 
has  held,  tliat  an  adopted  citizen  must  not  be  found  in  liostility  to  his 
native  country,  and  that  Blackstone  and  Lord  Hale  liave  held  a  like 


CONVENTION    WITH   GREAT   BRITAIN. 


137 


rdian  in 
but  we 
by  this 
father's 
n,  it  did 
its,  of  a 
11  in  the 
idy,  and 
first  ten 
it  of  the 
er,  child, 
[ng  lady, 
I  against 
J   United 
subject," 
present  a 
es.     Cei- 
'  govern- 
5  a  citizen 
3f  domicil 
3re  can  be 
lore  than 
nciple  of 
8  case, 
srhether  I 
3  against 
[iry  to  the 
d  answer 
iain  that 
omicil  is 
le,  and 
imstances 
nsinexe- 
i  military 
In  main- 
iani  Scott 
ity  to  his 
eld  a  like 


doctrine ;  but  these  distinguished  judges  recorded  these  opinions  at  a 
time  when  feudal  institutions  had  a  firmer  hold  on  England  than  they 
have  now ;  and  the  latter  two,  before  the  States  and  nations  of  America 
had  taken  their  places  among  the  independent  nations  of  the  world, 
and  before  half  a  mflliou  of  people  swarmed  annually  from  the  British 
isles  to  light  upon  and  make  their  homes  in  nearly  every  inhabited 
spot  on  the  globe.     They  would  not  now,  if  they  could  be  here  to 
witness  this  wonderful  cliange  in  the  condition  of  the  worlds  contend 
that  these  persons,  many  of  whom  were  forced  by  necessity  to  quit  the 
land  of  their  birth,  ought  to  be  subject  to  the  obsolete  claim  of  perpetual 
allegiance,  or  the  penalties  of  treason,  if  found  in  .liostility  to  their 
native  country,  under  the  circumstances  I  have  mentioned.     Under  a 
long-continued  practical  recognition  of  tlie  right  of  emigration  by 
Great  Britain,  will  it  still  be  asserted  that  she  claims  the  old  feudal 
prerogative  of  recalling  these  persons,  and  exacting  the  same  duties 
as  if  they  had  never  left  the  country?     No  such  doctrine  will,  I  appre- 
hend, ever  be  again  practically  applied  by  the  British  government. 
The  American  doctrine  on  this  point  is  that  which  is  more  in  con- 
formity with  the  practice  and  progress  of   the  age.     It  was  very 
formally  declared  by  the  government  of  the  United  States,  in  answer 
to  the  Austrian  demand  for  the  liberation  of  Koszta.     It  is  there  laid 
down,  "that  the  sounder  and  more  prevalent  doctrine  is,  that  tlie 
citizen  or  subject,  having  faithfully  performed  the  past  and  present 
duties  resulting  from  his  relation  to  the  sovereign  power,  may  at  any 
time  release  himself  from  the  obligation  of  allegiance,  freely  quit  the 
land  of  his  birth  or  adoption,  seek  through  all  countries  a  home,  and 
select  anywhere  that  which  offers  him  the  fairest  prospect  of  happiness 
for  himself  and  his  posterity." 

If,  however,  the  rule  in  support  of  which  I  have  produced  such 
abundant  authority  be  not  admitted,  and  the  commission  should  say 
they  will  disregard  the  law  of  nations,  and  especially  that  law  as  recog- 
nized by  England,  and  adopt  an  ancient  impracticable  prerogative 
of  the  crown  in  its  stead,  then  every  question  that  has  been  decided 
in  the  United  States,  in  which  a  British-born  subject  has  been  a  party 
during  the  last  forty  years,  may  be  re-examined  and  reversed  by  this 
commission.  You  will  practically  declare  that  the  thousands  of  per- 
sons that  England  has  induct  I  to  leave  her  shores  and  seek  their 
support  in  other  lands,  are  still  retained  as  British  siihjects,  and  may, 
as  such,  present  claims  to  this  commission  against  the  United  States. 


■ 

i  : 


11  ll 


138 


ADJUSTMENT  OP   CLAIMS   UNDER  THE 


To  this  doctrine  I  do  not  exi)ect  to  be  asked  to  assent.  It  is  too 
palpably  at  war  with  the  decisions  of  the  highest  legal  authority  in 
England  and  America,  to  suppose  that  this  commission  would  sanction 
a  principle  so  unfounded,  and  fraught  with  so  much  evil.  It  would 
make  it  not  what  it  really  is — a  commission  to  settle  the  claims  of  the 
respective  citizens  of  the  two  countries  upon  the  government  of  the 
other — but  a  commission  to  settle  claims  upon  the  United  States  by 
Englishmen.  The  rule  laid  down  on  this  subject  by  the  United  States 
in  the  case  of  Koszta  is  the  only  one  that  can  relieve  the  question  of 
all  difficulty.  It  is  this :  "The  conflicting  cases  on  the  subject  of  alle- 
giance are  of  a  municipal  character,  and  have  no  controlling  operation 
beyond  the  territorial  limits  of  the  countries  enacting  them.  All  un- 
certainty as  well  as  confusion  on  this  subject  is  avoided  by  giving  due 
consideration  to  the  fact,  that  the  parties  to  the  question  now  under 
consideration  are  two  independent  nations,  and  that  neither  has  the 
right  to  appeal  to  its  own  laws  for  the  rules  to  settle  the  matter  in 
dispute,  which  occurred  within  the  jurisdiction  of  a  third  independent 
power."  Thin  case  arose  in  the  jurisdiction  of  Mexico.  England 
and  the  United  States  are  the  parties.  The  laws  of  England  cannot, 
therefore,  give  the  rule,  but  the  matter  in  dispute  must  be  settled  by 
the  law  of  nations. 

It  is  not  denied  that  a  contract  with  an  alien  enemy  made  in 
time  of  war  cannot  be  enforced  in  the  English  courts  on  the  return  of 
peace.  This  has  been  often  settled,  but  especially  in  the  case  of  Wil- 
lison  V.  Pattison,  7  Taunton,  439,  that  is  to  say,  no  contract  made  by 
a  person  domiciled  in  England  with  another  person  now  domiciled  in 
Russia,  no  matter  where  he  may  have  been  born,  or  to  what  country 
he  may  claim  to  owe  allegiance,  can  ever  be  enforced  in  the  British 
courts.  This  is  as  true  of  British-born  subjects  as  it  is  in  regard  to  all 
others,  and  certainly  for  a  much  stronger  reason ;  no  claim  against 
England,  arising  from  an  act  of  her  agents  towards  an  enemy  thus 
situated,  would  ever  be  acknowledged  by  her.  If,  however,  British 
subjects,  residing  in  Mexico  during  the  war,  are  to  be  allowed  to  pre- 
sent to  this  commission  a  claim  against  the  United  States,  the  de- 
liberate decisions  of  the  British  courts  of  admiralty  for  a  series  of  ages 
will  not  only  be  overthrown,  and  the  law  of  nations  treated  as  of  no 
force,  but  the  American  citizen,  who  may  be  in  Russia  during  this 


^ 


CONVENTION   WITH   GREAT   BRITAIN. 


139 


whole  war  contributing  his  money,  and,  in  the  language  of  Sir  Wil- 
liam Scott,  "his  spirit  and  industry,"  tooppose  England,  may  come 
before  some  future  commission  to  settle  claims  between  the  United 
States  and  Great  Britain,  and  there  enforce  against  her  a  claim,  the 
principle  of  which  could  not  be  maintained  in  the  British  court  of 
admiralty,  and  which  is,  in  fact,  invalid  by  the  law  of  nations. 

The  writers  on  international  law  are  very  clear  and  unifornf  in 
their  recognition  of  the  rule  that  a  person  is  to  be  regarded  as  the 
subject  of  that  country  where  he  has  his  domicil.  Grotius  says  :  "  By 
the  law  of  nations  all  the  subjects  of  the  offending  state,  who  are  such 
from  a  permanent  cause,  whether  native  or  emigrants  from  another 
country,  are  liable  to  reprisals,  but  not  so  those  who  are  only  travelling 
or  sojourning  for  a  little  time."  Wheaton,  in  his  treatise  on  inter- 
national law,  lays  down  expressly,  that  "whatever  may  be  the  ex- 
tent of  the  claims  of  a  man's  native  country  upon  his  political  allegi- 
ance, there  can  be  no  doubt  that  the  natural-born  subject  of  one 
country  may  become  the  citizen  of  another  in  time  of  peace  for  the 
purposes  of  trade,  and  may  become  entitled  to  all  the  commercial 
privileges  attached  to  his  acquired  domicil."  Here  it  is  asserted  dis- 
tinctly, that  living  in  a  country  in  time  of  peace,  and  carrying  on 
trade,  renders  him  a  citizen  of  that  country  in  the  view  of  national 
law ;  and  I  have  already  shown,  by  numerous  authorities,  that  this 
doctrine  is  in  conformity  with  British  adjudications  on  this  point. 

Having  seen  that  a  residence  in  a  foreign  country  constitutes  a  per- 
son a  domiciled  citizen  there,  and  renders  that  country  answerable 
for  his  conduct  to  other  nations,  it  may  be  worth  while  to  inquire 
more  fully,  what  species  of  residence  will  render  the  party  liable  to 
have  his  property  subject  to  the  same  rules  as  other  citizens  ? 

Lord  Camden,  in  delivering  the  judgment  of  the  court  in  the  cases 
arising  out  of  the  capture  of  St.  Eustatius,  stated,  "  that  if  a  man 
went  into  a  foreign  country  upon  a  visit,  to  travel  for  health,  to  settle 
a  particular  business,  or  the  like,  he  thought  it  would  be  hard  to  seize 
upon  his  goods  ;  but  a  residence  not  attended  with  theee  circumstances 
ought  to  be  considered  as  a  permanent  residence."  Then,  in  speaking 
of  the  resident  foreigners  in  St.  Eustatius,  he  said,  "  that  in  every 
point  of  view  they  ought  to  be  considered  as  resident  subjects.  Their 
persons,  their  lives,  their  industry,  were  employed  for  the  benefit  of 
the  state  under  whose  protection  they  lived ;  and  if  war  broke  out, 


140 


ADJUSTMENT  OP  CLAIMS   UNDER  THE 


i'' 


they,  continuing  to  reside  there,  paid  their  proportion  of  taxes,  imposts, 
and  the  like,  equally  with  natural-born  subjects,  and  no  doubt  came 
within  that  description." 

Sir  William  Scott  observes  that  time  is  the  grand  ingredient  in  con- 
stituting domicil.  But  he  was  clearly  of  opinion  that  mere  recency  of 
establishment  would  not  avail,  if  the  intention  of  making  a  permanent 
residence  there  was  fixed  upon  the  party  ;  and  he  referred  to  the  case 
of  Whitehill,  one  of  the  persons  whose  property  was  confiscated  on 
the  seizure  of  St.  Eustatius.  He  was  an  Englishman,  and  had  arrived 
at  St.  Eustatius  only  two  days  before  it  was  seized  by  the  British  forces, 
but  it  was  proved  that  he  had  gone  there  to  establish  himself,  and  his 
property  was  condemned .  Thus  a  residence  of  forty-eight  hours  trans- 
formed the  political  character  of  an  Englishman  into  that  of  a  Dutch- 
man ;  and  it  ought  not  to  require  a  longer  time  to  work  a  like  change 
in  an  Englishman  on  his  going  to  Mexico. 

I  am  very  glad  the  counsel  for  her  Majesty's  government  has 
referred  lo  "Kent's  Commentaries  on  the  Law  of  Nations."  There 
is  no  author  on  either  side  of  the  Atlantic  that  stands  higher  as  an 
authority  on  international  law  than  Chancellor  Kent,  and  I  propose 
to  add  his  conclusive  authority  to  that  already  cited.  "Concern- 
ing domicil,"  he  states,  "if  a  person  has  a  settlement  in  a  hostile 
country  by  the  maintenance  of  a  commercial  establishment  there,  he 
will  be  considered  a  hostile  character,  and  a  subject  of  the  enemy's 
country  in  regard  to  his  commercial  transactions  connected  with  that 
establishment.  The  position  is  a  clear  one,  that  if  a  person  goes  into 
a  foreign  country,  and  engages  in  trade  there,  he  is,  by  the  law  of 
nations,  to  be  considered  a  merchant  of  that  country,  and  a  suhject  for 
all  civil  purposes,  whether  the  country  he  hostile  or  neutral,  and  he  cannot 
be  permitted  to  retain  the  jirivileges  of  a  neutral  character  during  his 
residence  and  occupation  in  an  enemy's  country."  "This  general 
rule,"  he  adds,  "  has  been  applied  by  the  English  courts  to  the  cases 
of  Englishmen  residing  in  a  neutral  country,  and  they  are  admitted, 
in  respect  of  their  l>07id  fide  trade,  to  the  privileges  of  the  neutral 
character." 

"  This  same  principle,  that  for  all  commercial  purposes  the  domicil  of 
the  party,  without  reference  to  the  place  of  birth,  becomes  the  test  of 
national  character,  has  been  rei^eatedly  and  explicitly  admitted  in  the 


I 


CONVENTION   WITH   GREAT   BRITAIN. 


141 


courts  of  the  United  States.  If  he  resides  in  a  belligerent  country, 
his  property  is  liable  to  capture  as  enemy's  property ;  and  if  he  resides 
in  a  neutral  country,  he  enjoys  all  the  privileges,  and  is  subject  to  all 
the  inconveniences  of  the  neutral  trade.  He  takes  the  advantages  and 
disadvantages,  whatever  they  may  be,  of  the  country  of  his  residence." 
"This  doctrine,"  says  this  distinguished  writer,  "is  founded  on  the 
principles  of  national  law,  and  accords  with  the  reason  and  practice 
of  all  civilized  nations." 

Would  it  bo  in  conformity  with  this  doctrine  to  give  these  claimants 
the  adv.  '\tn^  'f  British  subjects  at  tht'  same  time  that  they  are 
domicile,  in  Ml^.oo,  and  enjoying  C  >  oenefits  of  citizenship  in  that 
country?  Sucli  a  thing  is  totally  unheard  of  as  that  England  should 
undertake  to  redress  the  grievances  arising  within  the  territory  of 
another  country.  It  is,  I  repeat,  entirely  opposed  to  the  notion  of 
independence  in  other  countries,  to  the  decisions  of  her  own  courts, 
and  the  practice  of  her  government.  If  she  can  redress  the  grievances 
of  an  Englishman  domiciled  in  Mexico,  she  can  those  of  a  Mexican,  (for 
the  law  of  nations  places  them  both  on  the  same  footing,)  and  we  shall 
have  before  this  commission  yet  other  Mexican  claims. 

By  the  recent  action  of  the  British  government,  these  principles  have 
received  important  and  authoritative  confirmation,  which  must  have 
great  weight  with  the  commissioners  in  determining  this  question.  The 
exact  question  for  which  I  have  been  contending  in  this  case,  has  been 
practically  decided  by  a  despatch  from  the  secretary  of  foreign  affairs, 
in  answer  to  an  application  from  the  British  consul  at  Riga,  asking  to 
be  informed  in  what  condition  war  would  place  British  merchants 
residing  in  Russia.  In  reply,  Lord  Clarendon  said,  on  the  16th  of 
February,  "that,  by  the  law  and  practice  of  nations,  a  belligerent 
lias  a  right  to  consider  as  enemies  all  persons  who  reside  in  a  hostile 
country,  or  who  maintain  commercial  establishments  therein,  whether 
these  people  are  by  birth  neutral,  allies,  or  enemies^  or  fellow-subjects; 
the  property  of  such  persons,  exported  from  such  countries,  is  there- 
fore res  hostium,  and,  as  such,  lawful  prize  of  war  ;  sucli  property  will 
be  considered  as  a  prize,  although  its  owner  is  a  native-born  subject  of 
the  captor's  country,  and  although  it  may  be  in  transition  to  that 
country,  and  its  being  laid  on  board  a  neutral  ship  will  not  protect 
the  property." 


4. 


142 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


This  is  a  declaration,  that  every  person  domiciled  in  Bussia  during 
the  war  will  be  regarded  as  a  Russian.  We  have  seen  that  it  is  merely 
an  announcement  of  th"  law  of  nations  on  this  point,  and  presents 
nothing  new.  If,  therefore,  persons  are  to  be  considered  as  Russian 
subjects  who  remain  under  that  government  during  war,  the  same  rule 
must  be  applied  to  those  who  adhered  to  the  Mexicans  while  the  United 
States  were  at  war  with  that  country,  and  henco  this  commission  is 
bound  to  declare  that  it  has  no  jurisdiction  in  this  case. 


•♦.'..;■ 


CONVENTION  WITH   GREAT  BRITAIN. 


143 


Upham,  United  States  Commissioner  : 

The  first  article  in  the  convention  provides  'Hhat  all  claims  of  cor- 
porations, companies,  or  private  individuals,  subjects  of  her  Britannic 
Majesty,  upon  the  gDvernment  of  the  United  States,  and  all  claims  of 
cituens  of  the  United  States  against  the  British  government ' '  from 
the  year  1814  to  the  present  time,  shall  be  submitted  to  the  decision 
of  this  commission. 

It  has  been  objected,  on  the  part  of  the  United  States,  that  the 
claimants  in  this  case  are  not  British  subjects  within  the  meaning  of 
the  terms  of  this  convention,  but  were  domiciled  merchants  in  Mexico, 
engaged  in  trade  there  during  war  between  that  country  and  the 
United  States,  and  are  therefore  to  be  regarded  as  Mexican  citizens 
and  alien  enemies ;  and  that  all  acts  of  hostility  between  the  two  coun- 
tries were  settled  and  adjusted  by  the  treaty  of  peace,  or,  if  unsettled, 
can  only  be  adjusted  by  the  United  States  and  Mexico. 

On  the  other  hand,  it  is  contended  that  the  claimants  are  subjects 
within  the  terms  of  the  British  statute,  and  are  to  be  held  as  such,  so 
far  as  regards  their  remedy  under  this  convention,  though  in  adjudi- 
cating n})on  their  claim  they  may  be  entitled  to  no  greater  rights  than 
a  Mexican  citizen. 

It  is  quite  clear  to  me  that  the  correlative  terms  ' '  citizens ' '  and  ' '  sub- 
jects" were  used  by  the  contracting  parties  in  the  convention  in  contrast 
with  and  exclusive  of  each  other ;  and  that  it  was  not  contemplated  by 
them  that  subjects  of  Great  Britain  could  be  regarded,  at  the  same 
period  of  time,  as  citizens  of  the  United  States,  or  that  citizens  of  the 
United  States  might  in  the  same  manner  have  the  additional  character 
of  subjects  of  Great  Britain. 

If,  however,  we  affix  to  the  term  British  subjects  the  meaning  estab- 
lished by  the  municipal  laws  of  England  in  their  statutes,  it  will  in- 
clude vast  numbers  of  American  citizens,  embracing  not  only  all  the 
emigrants  from  Great  Britain  who  have  become  settled  and  natural- 
ized citizens  of  the  United  States  since  the  revolution,  but  their  child- 
ren and  grandchildren  who  may  have  been  born  there. — (See  7  Anne, 
ch.  5;  4  Geo.  II,  ch.  21;  and  13  Geo.  Ill,  ch.  21.) 

Thus,  under  this  construction,  every  officer  in  the  American  govern- 
ment might  be  entitled  to  enforce  before  this  commission  claims,  as 
British  subjects,  against  their  own  government,  as  their  grandfathers 
may  have  been  subjects  of  Great  Britain. 


A 


li 


144 


ADJUSTMENT   OF  CLAIMS   UNDER   THE 


This  constructive  doctrine  ns  to  British  subjects,  though  it  still  re- 
mains upon  the  British  statute-book,  has  long  been  wholly  obsolete  as 
to  all  international  action  between  Great  Britain  and  other  States. 
Many  years  since  the  claim  was  put  forth  by  a  British  commander, 
that  naturalized  citizens  of  America  engaged  in  war  against  their  na- 
tive country  would  be  summarily  proceeded  against  as  British  subjects. 
But  the  claim  was  at  once  met  by  the  declaration,  that  for  every 
American  citizen  thus  proceed'^l  against,  a  similar  example  would  be 
made  of  British  prisoners,  and  it  was  abandoned. 

It  is  possible  that  Great  Britain  may  keep  this  provision  upon  her 
statute-book  in  order  that  the  children  and  grandchildren  of  emigrants 
from  that  country  who  may  clioose  to  return  again  to  her  jurisdiction 
shall  be  received  at  once  into  full  fellowship  as  subjects  ;  but  in  the 
decisions  of  her  courts,  in  her  international  contracts,  in  her  construc- 
tion of  the  rights  of  actual  subjects,  and  the  disabilities  of  aliens,  she 
holds,  without  exception,  that  a  person  going  to  a  foreign  country 
and  becoming  domiciled  there,  in  the  legal  sense  of  that  term,  is  to  be 
regarded,  for  all  civil  purposes,  as  a  subject  and  citizen  of  such  coun- 
try, entitled  to  the  rights  and  subject  to  the  disabilities  arising  from 
his  domicil. 

There  never  has  been  anV  international  difterence  of  opinion  between 
the  two  governments  as  to  who  are  actual  citizeiis  and  subjects  of  either 
power  in  their  dealings  and  relations  with  each  other,  and  there  can 
l)e  no  doubt  that  tliis  wcll-undorstood  international  meaning  was 
adopted  and  used  in  tliis  convention  in  reference  to  the  terms  citizens 
and  subjects  of  either  country. 

I  contend,  then,  that  we  are  not  t  >  look  to  the  Statutes  of  England 
for  the  definition  of  the  term  subjects,  but  to  the  settled  practice  and 
usages  of  nations.  The  same  rule  of  interpretation  applies  to  the 
term  citizens.  Tlie  only  difterence  in  the  two  cases  is,  that  the  United 
States  have  established  conditions  of  citizenship  in  harmony  with  the 
present  views  and  usages  of  nations,  while  such  is  not  the  case  with 
tlie  term  subject  as  established  by  the  municipal  law  of  England. 

It  seems  to  ino  hardly  necessary  to  sustain,  by  authorities,  the  posi- 
tion taken  as  to  the  ])roper  construction  of  the  terms  under  considera- 
tion. 

The  decisions  of  England  and  the  United  States,  as  well  as  those  of 
every  other  nation,  are  uniform  to  the  point,  that  an  individual  going 


CONVENTION   WITH   GREAT  BRITAIN. 


146 


to  another  country,  and  becoming  domiciled  there  for  purposes  of 
trade,  is,  by  the  law  of  nations,  to  bo  considered  a  subject  of  such 
country  for  all  civil  purposes,  whether  such  government  be  a  hostile 
or  neutral  power. 

Authorities  to  this  effect  will  be  found  in  Wilson  v.  Mairy(tt,  8 
Term  Rep.  31 ;  M'Connel  v.  Hector,  IJ  Bos.  d  Pull.  113  ;  The  Indian 
Chief y  3  Rob.  Rep.  12  ;  The  Anna  Catherina,  4  Roh.  Rep.  107  ;  Do. 
Damns,  note,  255 ;  The  President,  5  Roh.  Rep.  277 ;  The  Matchless, 
1  Hag<j.  Ad.  Rep.  103 ;  The  Odin,  Hall,  master,  1  Rob.  Rep.  296 ; 
Bell  V.  Reid,  1  Maule  d:  Seho.  726. 

American  authorities  to  the  same  point  will  be  found  in  the  case  of 
The  Sloop  Chester,  2  Dallas,  41  ;  Murray  v.  Schooner  Betsey,  2  Cranch, 
64;  Maley  v.  Shattuck,  3  Cranch,  488;  Livingston  v.  Maryland 
Insurance  Company,  7  Cranch,  506  ;  The  Veiius,  8  Cranch,  263 ;  The 
Frances,  8  Cranch,  363  ;  Los  Dos  Hermanos,  2  Wheat.  76.  These 
authorities,  with  various  others,  are  cited  and  approved  by  Chancellor 
Kent  in  \  Kent's  Commentaries,  1o;  and  ho  alleges  that  the  doctrine 
sustained  by  them  '^is  founded  on  the  principles  of  international  law, 
and  accords  with  the  reason  and  practice  of  all  civilized  nations." 

All  writers  on  international  law  concur  in  these  views,  and  adopt 
the  maxim,  ^^ Migrans  jura  amittat  ac  privilegia  et  immunitates 
domicilii  2>^'ioris." — {Voet,tome  1,  347  ;  Grotius,  Book 3,  p.  56,  ch.  2, 
sec.  2;  Book  3,  ch.  4,  sec.  6;  Vattel,  Book  1,  ch.  19,  sec.  212;  Wheaton's 
International  Latv,  Part  4,  ch.  1,  sees.  17  d'  19.) 

The  same  principles  are  declared  by  public  announcement  of  the 
present  English  ministry  in  reference  to  the  existing  war  with  Kussia, 
"  as  the  settled  law  and  practice  of  nations,"  and  that,  "  by  such  law 
and  practice,  a  belligerent  has  a  right  to  consider  as  enemies  all 
persons  who  reside  in  a  hostile  country,  or  maintain  commercial 
establishments  tlierein,  whether  such  persons  are  by  birth  neutrals, 
allies,  enemies,  or  fellow-subjects." 

And  in  conformity  with  this  declaration,  and  the  previous  decisions 
on  this  subject,  it  was  adjudged  by  the  admiralty  court,  a  short  time 
since,  in  llie  case  of  The  Abo,  that  "in  time  of  war  a  person  must  be 
considered  as  belonging  to  the  nation  whare  he  resides  and  carries  on 
his  trade,  so  far  as  the  principles  and  rules  of  law  are  concerned, 
wliether  he  reside  in  the  enemy's  or  a  neutral  coimtry." — (The  Times, 
July  22,  1854.) 

10 


146 


ADJUSTMENT  OF  CLAIMS   UNDER  THE 


The  EngliHU  authorities  which  have  heen  cited  expressly  declare, 
that  a  person  domiciled  in  another  country  "is  to  be  taken  as  a  subject 
of  such  country."  These  are  the  words  of  Lord  StowoU,  in  the  case 
of  the  President,  above  cited.  And,  in  making  such  decision,  ho  does 
not*  mean  to  bo  understood  that  such  a  ])crHon  may  l)e  a  citizen  of 
another  country,  and  at  tho  same  time  a  British  subject,  as  is  con- 
tended before  us;  but  he  expressly  declares,  in  The  Ann,  1  Dod.  Ad. 
Rep.  224,  that  this  cannot  be,  because^  ho  says,  "he  cannot  take 
advantage  of  both  characters  at  the  same  time," 

The  owner  of  tlie  Ann  was  a  British-born  subject,  and  his  wife  and 
child  resided  in  Scotland,  but  he  himself  personally  was  domiciled  in 
the  United  States.  He  was  therefore  clearly  a  British  subject  by  the 
municipal  laics  of  England,  but  Sir  William  Scott  (Lord  Stowell)  held 
that,  as  regarded  his  international  intercourse  and  character,  he  was 
not  a  British  subject,  or  entitled  to  redress  as  such,  and  his  property 
was  condemned  accordingly,  notwithstanding  tlio  decree  in  council 
declared  "  that  all  property  of  British  subjects,"  seized  under  like 
■circumstances,  "  should  be  restored." 

The  international  definition  of  subject  is  also  recognized  and  adjudged 
in  Drummond's  case,  2  Knapp's  Privy  Oouncil  Iteports,  205,  where  it 
was  holden  that,  though  an  individual  might  be  formally  and  literally, 
by  the  law  of  Great  Britain,  a  British  subject,  still  there  was  a  ques- 
tion beyond  that,  and  that  was,  whether  he  was  a  British  subject  within 
the  meaning  of  the  treaty  then  under  consideration  ;  and  it  was  there 
contended  that  all  treaties  must  be  interpreted  according  to  the  law  of 
nations,  and  that  where  a  treaty  speaks  of  the  subjects  of  any  nation,  it 
means  those  who  are  actually  and  eftectually  under  its  rule  and  gov- 
ernment, and  not  those  who,  for  certain  jjurposes,  under  the  mere  muni- 
cipal obligations  of  a  country,  may  be  held  to  maintain  that  character. 
And  in  Long's  case,  2  Knapp's  Privy  Council  lieports,  51,  it  was 
holden  that  a  corporation,  composed  of  British  subjects,  existing  in  a 
foreign  country,  and  under  tho  consent  of  a  foreign  government,  must 
be  considered  as  a  foreign  corporation,  and  is  not  therefore  entitled  to 
claim  compensation  for  the  loss  of  its  property  under  a  treaty  giving 
the  right  of  doing  so  to  British  subjects. 

In  the  same  manner,  and  on  the  same  principle,  the  converse  of  the 
proposition  was  holden  in  the  Countess  of  Conway's  case,  2  Knapp's 
Privy  Council  lieports,  3C4,  that  a  French  native-born  subject,  residing 


CONVENTION    WITH   GREAT   BRITAIN. 


147 


in  England,  had  the  charncter  of  a  British  suhjcct,  nnd  waH  entitled 
to  chiini  compensation  as  hucIi,  af^ainst  hin  own  cnnntry,  tor  h)8seH  under 
a  treaty  providing  compensation  to  bo  made  "to  British  subjects." 

Tlieso  cases  seem  to  mv  to  be  sound  in  principle  and  explicit  in 
authority;  and  I  a'm  surprised,  after  these  well-established  and  adju- 
dicated decisions,  the  doctrine  is  still  contended  for,  that  in  the  inter- 
pretation of  the  term  subject,  in  this  convention,  we  are  to  be  confined 
to  the  meaning  affixed  to  it  by  the  English  statute. 

It  is  desirable,  before  giving  to  it  this  construction,  we  should  ascer- 
tain precisely  what  it  means. 

By  applying  this  construction  to  the  convention,  the  second  article 
would  be  made  to  read  as  follows :  ' '  That  all  claims  against  the  United 
States,  of  corporations,  companies^  or  juivate  individuals,  resident 
subjects  of  her  Britannic  Majesty,  and  of  all  ii;\tive-born  citizens  of 
Great  Britain,  who  may  have  emigrated  to  the  United  States  since  the 
revolution,  and  of  their  children  and  granuchildrer  who  may  have 
been  born  there,  and  all  claims  of  citizens  of  the  Uiiilc  I  States  against 
the  British  government,  shall  be  submitted  t  the  decision  of  t','  board 
of  commissioners,  whose  decision  shall  be  final,  '  &c. 

It  seems  to  me  that  such  an  interpolation  in  the  terms  of  this  cor, 
vention,  or  such  a  construction  of  it,  would  strike  no  persons  with  more 
surprise  than  its  negotiators. 

It  is  said,  however,  in  order  to  obviate  t'o  evident  difficulty  of  re- 
garding the  treaty  in  this  light,  that  a  person  holding  the  statute 
relation  o(  subject  to  England,  may  appear  before  this  commission,  and 
prosecute  his  cluim  as  such  ;  but  if  he  is  domiciled  in  another  country, 
his  case  is  to  be  adjudged  and  determined  by  the  commission  as  though 
he  were  a  citizen  of  that  coiinti . . 

But  I  regard  this  as  an  erroiitjus  and  untenable  position  for  any 
court  or  tribunal  to  take. 

Suppose,  for  instance,  thui  an  American  citizen,  whose  grandfather 
was  born  in  England,  diould  come  before  this  commission,  armed  with 
the  power  and  authority  of  the  British  government,  to  enforce  liis  claim 
here  against  his  own  countrv,  will  it  answer  for  this  commission  to 
say,  that  by  the  law  of  England  he  is  a  British  subject,  and  as  such 
we  must  hear  him,  but  we  will  adjudge  his  case  precisely  as  though 
he  were  a  citizen  of  the  United  States?  Surely  not.  Like  any  other 
citizen  of  the  United  States,  he  must  pursue  his  remedy  before  the 
ordinary  constituted  tribunals  of  his  country,  or  before  Congress.     It 


f    ■ 


h 


148 


ADJUSTMENT   OF  CLAIMS  UNDER   THE 


'  !' 


M 


would  be  a  futile  attempt  in  uh  to  undertake  to  make  any  award  on  the 
merits  of  his  case,  as  it  cannot  be  supposed  that  either  nation  would 
sanction  such  an  extraordinary  assumption  of  power. 

This  tribunal  was  not  constituted  to  pass  upon  any  such  claim  ; 
neither  was  it  constituted  to  pass  upon  the  claim  of  any  British-born 
subject  who  may  have  domiciled  himself  in  Mexico,  and  who  continued 
to  reside  there  during  a  war  between  the  United  States  and  that  coun- 
try, '^^  carrying  on,"  in  the  words  of  the  legal  authorities,  "trade 
there,  paying  the  taxes,  and  employing  the  people  of  the  country,  and 
expending  his  industry  and  capital  in  her  service." 

"Such  a  person,"  says  Lord  Chief  Justice  Alvanly,  "who  resides 
in  a  hostile  country,  is  a  subject  of  such  country.  He  is  to  all  civil 
purposes  as  much  an  alien  enemy  as  if  he  were  born  there,  and  to  hold 
to  a  different  conclusion  would  be  to  contradict  all  the  modern  author- 
ities on  the  subject." — {M'Connel  v.  Hector,  3  Bos.  <£•  Pull.  114.) 

This  foreign  character,  however  assumed,  is  a  substantial  recog- 
nized civil  relation,  as  much  so  as  the  prior  subsisting  relation  with 
England.  The  Messrs.  Laurent,  in  this  case,  are  citizens  of  Mexico, 
and  their  claim  against  the  United  States  is  a  Mexican  claim.  Such 
a  claim  can  only  be  adjudicated  between  the  two  governments  where 
it  originated.  They  alone  are  the  national  parties  to  it.  And  neither 
Mexico  nor  the  United  States  are  here  with  the  necessary  papers  and 
evidence  for  its  adjustment,  for  the  reason  that  neither  of  those  govern- 
ments has  delegated  to  us  any  such  authority,  and  an  attempt  by  us 
to  bind  them  in  the  decision  of  such  claims  would  be  wholly  nugatory. 

It  is  suggested  in  the  argument  in  this  case,  ' '  that  the  claim  of 
English  subjects  cannot  extend  to  every  case  in  which  a  British  sub- 
ject has  been  a  party,  but  would  only  extend  to  claims  upon  the  United 
States  government,  preferred  by  persons  who  had  not  by  their  acts 
forfeited  their  right  to  appeal  to  the  English  government  for  its  inter- 
position." 

What  would  constitute  a  forfeiture  of  such  right  of  a  British  sub- 
ject is  not  stated  ;  whether  the  act  of  the  father  would  bar  the  son  of 
his  right  as  a  British  subject;  or  whether  being  born  in  a  foreign 
country,  where  his  futlier  was  domiciled,  would  have  sucli  effect. 
Many  such  (questions  would  arise  under  such  a  mode  of  determining 
tlie  national  character.  If  however  the  question,  whether  an  indi- 
vidual is  to  be  regarded  as  u  sulyect  of  Great  Britain,  is  to  depend 
upon  the  fact  whether  he  has,  by  his  otcn  acts,  forfeited  the  right  to 


CONVENTION   WITH   GREAT   BRITAIN. 


149 


on  the 
would 

claim  'y 
h-born 
itinued 
t  coun- 
" trade 
ry, and 

resides 
ill  civil 
to  hold 
author- 
14.) 

.  recog- 
on  with 
Mexico, 
I.     Such 
ts  where 
neither 
)ers  and 
^overn- 
t  by  us 
gatory. 
claim  of 
ish  sub- 
United 
eir  acts 
ts  inter- 

ish  sub- 
le  son  of 
foreign 
effect, 
r  mining 
m  indi- 
depeud 
right  to 


appeal  to  the  English  government  for  protection,  it  seems  to  me  this 
case  is  clearly  of  that  character. 

The  injury  of  which  the  Messrs,  Laurent  complain  arose  from 
their  placing  themselves  in  the  position  of  alien  enemies  of  the  United 
States  in  the  war  with  Mexico  ;  they  thereby  forfeited  tfeeir  right  to 
protection  on  the  part  of  England,  whose  government  was  neutral, 
and  could  neither  aid,  abet,  nor  countenance  any  of  its  subjects  in  such 
acts  of  hostility.  They  could  only,  on  this  principle,  be  regarded  as 
British  subjects  while  hdlding  the  position  of  the  British  nation  ;  and 
when  they  departed  from  such  position,  and  became  alien  enemies  of 
the  United  States,  they  forfeited  the  p'otcction  of  England  and  their 
right  to  appear  before  this  commission. 

The  United  States  has  no  remedy  against  Great  Britain  for  the  con- 
duct of  the  Messrs.  Laurent  while  domiciled  in  a  foreign  country,  as 
her  suhjecls;  and  they,  as  British  subjects,  have  no  claim  to  redress 
against  the  United  States,  or  to  appear  before  this  tribunal  in  that 
character. 

Domicil,  under  all  circumstances,  stamps  upon  the  individual  the 
character  oi foreigners,  neutral  or  alien,  as  the  case  may  be.  Chancel- 
lor Kent  says  it  is  "  the  test  of  national  character;"  and  that  the  only 
limitation  upon  the  principle  of  determining  character  from  residence 
laid  down  in  any  authority,  is  that  the  party,  so  far  as  regards  his 
own  country,  must  not  take  up  arms  against  it. — (1  Kent's  Com.,  76.) 

The  municipal  relation  of  subject  is,  for  the  time  being,  wholly  sub- 
ordinate to  the  new  relation  impressed  upon  tlie  individual,  and  can- 
not exist  as  an  international  relation.  His  original  right,  as  subject, 
may  revive  or  revert  if  he  returns  to  his  native  country,  but  it  is 
otherwise  inoperative. 

Each  nation  may  well  claim  of  other  governments  that  its  own 
native-born  citizens,  who  are  domiciled  with  them,  should  be  equally 
protected  by  law  with  the  native-born  citizens  of  other  countries.  In- 
vidious distinctions  in  this  respect  would  manifest  a  spirit  of  hostility 
against  the  parent  country  that  could  not  be  overlooked.  But  when 
individuals  leave  their  own  land,  and  have  become  domiciled  in  an- 
other country,  and  enjoy  there  the  protection  and  the  benefit  of  avail- 
ing themselves  of  its  laws,  courts,  tribunals,  and  appeals  to  its  general 
government,  as  fully  and  freely  as  the  native-born  citizens  of  that 
country,  for  the  protection  of  their  rights  and  the  business  in  which 
they  are  engaged,  the  original  government  of  such  persons  has  no 


:f| 


150 


ADJUSTMENT    OF  CLAIMS   UNDER   THE 


i 
it 


'•'  y 


claim  to  interfere  in  their  behalf.  Such  persons  become,  by  the  set- 
tled adjudications  of  all  countries,  and  the  judgment  of  all  writers  on 
public  law,  in  an  international  point  of  view,  citizens  of  such  country, 
as  to  all  matters  arising  from  such  business  and  residence ;  and  the 
treaties  and  conventions  between  foreign  States  are  framed  on  this 
basis. 

An  attempt  on  the  part  of  this  commission  to  overrule  or  revise  the 
decisions  of  British  or  American  courts  as  to  the  business  matters, 
transactions,  or  liabilities  of  persons  thus  do^^iciled  in  either  country, 
or  to  pass  upon  them  while  such  courts  were  fully  open  for  their  hear- 
ing and  decision,  would  be  an  utter  perversion  of  the  powers  granted 
by  this  convention. 

Persons  thus  domiciled  have  the  rights  and  the  disabilities,  under 
this  convention,  of  the  country  under  whose  protection  they  have 
chosen  to  reside.  An  American  native-born  citizen  who  has  taken  up 
his  residence  in  London,  and  engaged  in  business  there,  has  the  same 
rights,  under  this  convention,  against  the  United  Stat'^s,  for  any 
claims  arising  from  his  business  there,  as  any  other  citizen  of  Lon- 
don, but  his  claim  is  as  a  British  subject;  his  domicil,  by  the  settled 
construction  of  public  law,  affixes  on  him  that  character.  The  same 
is  the  case  with  an  English  native-born  subject  resident  in  New  York : 
his  claims  under  this  convention  can  be  those  only  of  an  American 
citizen,  so  far  as  regards  the  business  of  his  elected  domicil,  or  any 
adjudications  upon  it. 

And  wliere  an  individual  is  domiciled  in  another  country,  different 
from  that  of  either  of  the  contracting  parties  to  this  convention — as 
in  Mexico,  for  instance — his  claim  arising  from  acts  connected  with 
and  partaking  of  such  domicil  is  not  included  in  a  convention  for  the 
adjustment  of  the  claims  of  British  subjects  and  American  citizens. 

Such  a  claim  must  be  prosecuted  through  conventions  made  between 
the  country  of  his  adoption,  under  wliose  protection  his  business  was 
carried  on  and  his  claim  arose,  and  the  United  States.  As  regards 
any  powers  confided  to  us,  he  is  to  be  holden  as  a  Mexican  citizen. 
Such  a  decision  in  no  manner  conflicts  with  or  infringes  on  any  inter- 
national right  of  England  as  regards  her  subjects. 

For  these  reasons,  I  am  of  opinion  that  the  exception  taken  to  our 
jurisdiction  over  the  claim  of  the  Messrs.  Laurent,  as  presented  to  us, 
is  sustained,  and  that  no  authority  has  been  delegated  to  this  commis- 
sion to  adjudicate  upon  it. 


CONVENTION   WITH   GREAT  BRITAIN. 


151 


he  set- 
ters on 
mntry, 
nd  the 
9n  this 

irise  the 
aatters, 
ountry, 
ir  hear- 
g  ranted 

I,  under 
ey  have 
aken  up 
;he  same 
for  any 

of  Lon- 
e  settled 
?he  same 
w  York : 
mierican 

,  or  any 

diflferent 
iion — as 
ted  with 
n  for  the 
izens. 
between 
ness  was 
regards 
1  citizen, 
iiy  inter- 

3n  to  our 
ed  to  us, 
commis- 


HoRNBY,  British  Commissioner  • 

I  am  of  opinion  that  the  Messrs.  Laurent  are  entitled,  as  British 
subjects,  within  the  meaning  of  the  convention  of  1853,  to  be  heard 
before  the  commissioners  in  support  of  their  claim  to  compensation 
from  the  government  of  the  United  States. 

The  first  article  of  the  convention  provides  that  ' '  all  claims  on  the 
part  of  corporations,  companies,  or  private  individuals,  subjects  of  her 
Britannic  Majesty,  upon  the  government  of  the  United  States,  and  all 
claims  on  the  part  of  corporations,  companies,  or  private  individuals, 
citizens  of  the  United  States,  upon  the  government  of  her  Britannic 
Majesty,  which  may  have  been  presented  to  either  government  for  its 
interposition  with  the  other  since  the  signature  of  the  treaty  of  peace 
and  friendship  concluded  between  Great  Britain  and  the  United  States 
of  America  at  Ghent,  on  the  24th  of  December,  1814,  and  which  yet 
remain  unsettled,  as  well  as  any  other  such  claims  which  may  be  pre- 
sented within  the  time  specified  in  article  III,  hereinafter  mentioned, 
shall  ue  referred  to  two  commissioners,  to  be  appointed  in  the  following 
manner." 

It  is  not  disputed  that  the  Messrs.  Laurent^are  British-born  subjects, 
nor  pretended  that,  except  in  so  far  as  their  character  of  British  sub- 
jects may  be  affected  by  mere  residence  abroad,  they  have  done  anything 
to  divest  themselves  of  this  character.  They  have  not  been  naturalized 
in  Mexico ;  on  the  contrary,  they  have  annually  taken  out  a  permis- 
sion to  reside  in  Mexico,  in  which  permission  they  have  been  imiformly 
designated  as  British  subjects,  and  generally  they  have,  so  far  as  lay 
in  their  power,  perserved  their  English  character.  This  being  so,  and 
having,  as  they  conceive,  some  ground  of  complaint  against  the  United 
States  government,  they  have  appealed  to  the  English  government  for 
its  interposition  on  their  behalf  with  that  of  the  United  States.  It 
appears  therefore  to  me,  that  this  case  comes  within  the  letter  of  the 
convention,  and  is  prima  facie  within  our  jurisdiction. 

But  it  is  contended  by  the  learned  agent  of  the  United  States,  that 
though  within  the  letter,  the  case  is  not  within  the  spirit  of  the  con- 
vention ;  submitting  that  the  term  "British  subjects,"  used  in  the 
treaty,  is  not  to  be  interi)reted  according  to  English  law,  but  according 
to  international  law,  and  that  by  the  latter  a  person  can  only  be 
regarded  as  a  citizen  or  a  subject  of  the  country  in  which  he  is  for  the 


i; 


I 


il 


i  :; 


I.  i  L 
!■  '1 


152 


ADJUSTMENT  OF  CLAIMS  UNDER   THE 


K' 


time  being  domiciled.  I  do  not,  however,  understand  it  to  have  Leen 
assumed  by  the  agent  of  her  Majesty's  government  that  the  claimants, 
being  "British  subjects"  within  the  terms  of  a  British  statute,  are 
therefore  necessarily  "British  subjects"  within  the  meaning  of  the 
convention.  It  is  clearly  not  the  statute  law  of  England  which  is  to 
give  the  rule  of  interpretation,  but  the  obvious  intention  of  the  parties 
to  the  treaty. 

Now,  it  is  undoubtedly  true  that  treaties  are  to  be  interpreted  accord- 
ing to  international  law,  but  international  law  does  not  affix  an  un- 
varying meaning  to  particular  words,  or  prescribe  any  rule  for  the 
construction  of  treaties,  other  than  that  applicable  to  the  interpreta- 
tion of  all  written  documents — namely,  to  discover  and  give  effect  to 
the  intention  of  the  contracting  parties,  which  intention  is  to  be  col- 
lected from  the  language  of  the  instrument  of  agreement,  taken  in 
connexion  with  surrounding  circumstances  to  which  it  has  reference. 

The  cases  which  have  been  cited  by  the  American  agent  are  authori- 
ties for  the  well  known  principle  of  international  law,  that  foreigners, 
domiciled  in  an  enemy's  country,  cannot  set  up  a  neutral  character  as 
against  an  invading  force  on  account  of  their  foreign  origin,  so  as  to 
entitle  them  to  immunity.from  the  ordinary  consequences  of  war ;  and 
with  this  undoubted  principle,  the  declarations  of  the  English  ministers 
in  reference  to  the  present  war  with  Kussia,  as  well  as  the  recent 
decision  of  the  admiralty  court  in  the  case  of  "The  Abo,"  cited  by 
the  learned  agent  of  the  United  States,  are  in  strict  conformity.  It  may 
be  also,  when  we  come  to  consider  the  merits  of  the  Messrs.  Laurent's 
claim,  that  this  principle  will  be  found  to  govern  the  decision  which 
we  shall  have  to  give  for  or  against  the  claimants  ;  but  upon  exami- 
nation of  the  cases  cited,  it  is  clear  they  do  not  establish  the  principle 
which  they  have  been  supposed  to  prove,  viz:  that  the  term  "British 
subjects,"  as  used  in  this  treaty,  cannot,  under  any  circumstances  ivhat- 
ever,  be  intended  to  apply  to  British  subjects  domiciled  out  of  her 
Majesty's  dominions. 

Several  cases  which  were  decided  under  the  treaty  of  1814,  between 
France  and  England,  have  been  referred  to. 

The  object  of  that  treaty  was  to  provide  compensation  for  all  ' '  British 
subjects"  whose  property  had  been  confiscated  by  the  revolutionary 
government  of  France.  If  the  construction  which  is  noic  contended 
for  by  the  American  agent  had  been  put  upon  the  language  of  that 


CONYENTION   WITH   GREAT  BRITAIN. 


153 


treaty,  it  would  have  followed  that  no  persons  domiciled  in  France 
could  have  heen  admitted  to  claim  compensation  under  the  title  of 
"British  subjects  ;"  and  such  a  construction  would  have  gone  far  to 
defeat  the  very  object  for  which  the  treaty  was  entered  into,  as  it  is  a 
matter  of  history  that  the  property  of  many  persons,  established  as 
merchants  or  otherwise  in  France  at  the  time  of  the  revolution,  was 
seized  upon  the  very  ground  that  the  owners  wore  British  subjects, 
which  shows  that  mere  domicil  does  not  settle  the  question ;  and 
moreover,  on  reference  to  the  cases,  I  cannot  discover  that  the  con- 
struction contenaed  for  by  the  learned  agent  was  put  upon  the  French 
and  English  treaty. 

Genessee's  case,  reported  in  the  2d  volume  of  Knapp's  Reports,  p. 
345,  is  one  in  which  it  distinctly  appears  that  Messrs.  Boyd  and  Kerr, 
the  claimants,  were  established  as  bankers  at  Paris.  Now,  if  the 
present  objection  were  valid,  it  would  have  been  *a  sufficient  answer  to 
that  claim  to  have  said,  Messrs.  Boyd  and  Kerr  had  established  them- 
selves for  commercial  purposes,  and  were  domiciled  in  France  ;  that 
they  had  voluntarily  divested  themselves  of  the  character  of  British, 
and  had  assumed  that  of  French  subjects  ;  and  cannot  therefore  claim 
the  benefit  of  a  treaty  which  was  intended  for  the  protection  of  those 
British  subjects  only  who  had  not  quitted  their  own  country.  Messrs. 
Boyd  and  Kerr,  however,  were  held  to  be  clearly  entitled  to  compen- 
sation as  British  subjects  ;  and  by  the  decision  of  the  same  eminent 
judge.  Sir  William  Scott,  whose  judgments  in  other  cases  have  been 
quoted  in  opposition  to  the  admissibility  of  the  claim  of  Messrs.  Laurent 
in  the  present  case.  Drummond's  case,  decided  under  the  same  con- 
vention, has  been  especially  relied  on.  The  reasons,  however,  which 
are  expressly  given  for  the  decision  in  that  case,  show  it  was  not  deter- 
mined on  the  mere  fact  of  the  claimant  being  domiciled  in  France,  hut 
that  from  special  circumstances — such  as  accepting  military  employ- 
ment under  the  French  crown — he  had  voluntaflly  taken  upon  himself 
the  character  of  a  French  subject,  and  having  done  so,  the  new  French 
government  had  a  right  to  treat  him  as  such,  and  consequently  that 
he  was  not  entitled  to  indemnity. 

If  there  had  been  analogous  circumstances  in  the  present  case  I  might 
have  felt  bound  to  hold  that  the  Messrs.  Laurent  wore  not  entitled  to 
resume  at  pleasure,  for  their  advantage,  the  character  of  British  sub- 
jects, which,  for  their  advantage,  they  had  voluntarily  renounced  ;  but 


154 


ADJUSTMENT  OP  CLAIMS   UNDER  THE 


in  tlie  entire  absence  of  such  circumstances,  I  am  of  opinion  that  mere 
resilience  abroad  does  not  deprive  them  of  all  title  to  the  protection  of 
the  British  government,  or  can  preclude  that  government  from  taking 
steps  to  procure  for  them  redress  if  they  have  suifered  an  injury  in  vio- 
lation of  the  law  of  nations,  or  absolve  the  American  government  from 
the  liability  to  redress  such  an  injury. 

In  the  case  of  the  "  Ann,"  a  Britisb  subject,  who  had  been  domiciled 
in  the  United  States  during  the  war  between  that  country  and  Great 
Britain,  sought  to  be  admitted  to  the  benefit  of  the  orders  in  council 
which  were  intended  to  provide  compensation  for  those  British  subjects 
who  had  been  inadvertently  injured  in  the  course  of  the  war  by  theEnglish 
cruisers,  the  claimant,  having  adhered  to  the  enemy,  was  plainly  not 
one  of  the  class  of  persons  for  whose  relief  the  orders  in  council  were 
issued.  The  injury  he  sustained  was,  under  these  circumstances,  in 
no  wsiy  wrongful.  The  decision  therefore  was  not,  as  we  are  now  asked 
to  decide,  that  the  claimant  being  domiciled  abroad,  could  not,  under 
any  circumstances,  be  entitled  to  the  character  of  British  subject ;  but 
that  he  was  not  a  British  subject,  within  the  meaning  of  the  instru- 
ment then  under  consideration,  entitled  to  redress.  The  "Indian 
Chief,"  reported  in  3  Kob.  Rep.  12,  as  well  as  the  "President,"  in  5 
Rob.  Rep.  107,  are  both  cases  in  which  the  claimants  had  acquired  a 
hostile  character  against  their  own  country,  and,  as  enemies,  had  sus- 
tained losses  wliich  were  rightfully  inflicted  on  enemies.  It  was  im- 
possible therefore  for  them  to  establish  a  claim  against  this  country 
upon  the  ground  that  they  were  British  subjects,  in  the  face  of  the 
fact  of  their  having  been  in  a  position  of  hostility  to  Great  Britain. 
In  these  cases,  however,  the  merits  and  justice  of  the  claim  were  in  ques- 
tion, and  they  did  not  depend,  nor  were  they  decided,  upon  a  mere  ques- 
tion of  domicil.  It  does  not  appear  to  me  necessary  to  examine  the 
other  cases  in  detail,  inasmuch  as  none  of  them,  in  my  judgment,  show 
that  the  term  "  Britiih  subject"  necessarily  excludes  every  person 
domiciled  out  of  the  British  dominions.  And  it  becomes  our  duty  to 
ascertain,  from  the  object  and  language  of  the  present  convention,  the 
sense  in  which  the  words  in  question  were  employed  by  the  contracting 
parties. 

The  object  of  the  convention  is  stated  to  effect  ' '  a  speedy  and  equita- 
ble settlement"  of  certain  claims  pending  and  which  had  become  the 
subject  of  discussion  between  the  two  governments  ;  and  it  is  not  merely 
for  the  settlement  of  the  claims  themselves,  but,  rather,  to  remove 


i 

M 


CONVENTION    WITH    GREAT    BRITAIN. 


155 


at  mere 
ction  of 
I  taking 
1  in  vio- 
int  from 

)niiciled 
d  Great 
council 
subjects 
English 
inly  not 
icil  were 
mces,  in 
►w  asked 
t,  under 
ject ;  but 
e  instru- 
"  Indian 
It,"  in  5 
quired  a 
had  sus- 
was  im- 

country 
e  of  the 
Britain, 
in  ques- 
ere  ques- 
mine  the 
nt,  show 
person 

duty  to 
tion,  the 
itracting 

1  equita- 
3ome  the 
»t  merely 
remove 


I 


them  from  the  arena  of  discussion  between  the  two  governments,  that 
the  present  tribunal  has  been  erected  ;  and  it  is  therefore  provided  that 
all  claims,  &c.,  which  may  have  been  or  might  be  presented  to  either 
government  for  its  interposition  with  the  other,  should  be  referred  to 
this  commission. 

It  is  a  fad  that  the  applications  to  the  English  and  American  gov- 
ernments for  their  interposition,  one  with  the  other,  have  tio^  been  con- 
fined to  citizens  or  subjects  domiciled  in  their  own  country,  but  the 
claims  of  persons  domiciled  abroad  have  in  several  instances  become 
tlie  subject  of  correspondence  between  the  two  governments  ;  it  ap- 
pears to  me  therefore  that  if  the  sense  in  which  the  term  ''British 
subject"  or  "  American  citizen"  are  to  be  construed  be  sought  in  the 
context  of  the  convention,  it  will  be  found  that  the  contracting  parties 
contemplated  American  citizens  or  British  subjects,  wherever  resident, 
whose  claims  had  actually  been  or  might  properly  become  the  subject 
of  the  interposition  of  the  one  government  with  the  other. 

If,  then,  this  be  a  correct  mode  of  stating  the  question  which  we  liave 
to  determine,  it  cannot  be  denied  that  tlie  practice  of  governments  has 
been  to  extend  their  protection  to  such  of  their  citizens  as  may  be 
domiciled  abroad,  and  to  insist  upon,  and  with  success,  redress  for 
injuries.  Instances  in  which  the  American  government  has  so  ex- 
tended its  protection  and  demanded  compensation  have  been  mentioned ; 
and  the  case  of  Don  Pacifico  shows  that  the  English  government  has 
considered  itself  entitled  to  interfere  on  behalf  of  an  Englishman, 
though  domiciled  abroad.  And  many  other  instances  might  be  col- 
lected from  the  history  of  recent  times. 

Having  regard  therefore  to  the  fact  that  both  the  English  and 
American  governments  have  from  time  to  time  interposed  in  respect 
of  their  subjects  or  citizens  domiciled  out  of  their  respective  countries, 
and  that  such  interposition  has  in  some  instances  led  to  the  prefer- 
ment of  claims  by  the  one  government  on  the  other  which  were 
pending  at  the  tin\e  that  the  present  convention  was  entered  into,  it 
is  clear  to  mo  that  the  high  contracting  parties  in  entering  into  the 
present  treaty  intended  to  provide  a  tribunal  for  the  settlement  of  all 
claims,  whether  preferred  on  behalf  of  subjects  domiciled  in  the  British 
dominions  or  elsewhere,  and  consequently  that  the  claim  of  the 
Messrs.  Laurent  is  admissible  before  us. 

I  cannot  find  any  force  in  the  argument,  that  if  the  Messrs.  Laurent 


156 


ADJUSTMENT  OF  CLAIMS   UNDER   THE 


are  admitted  under  this  convention  as  British  subjects,  thousands  of 
American  citizens  by  birth  having  claims  against  the  American  gov- 
ernment, might  also  have  presented  them  before  the  commissioners  as 
British  subjects  by  descent.  If  I  am  right  in  the  rule  of  interpretation 
which  I  have  adopted,  it  is  clear  that  they  could  not ;  for  it  would  be 
ridiculous  to  suppose  that  either  of  the  contracting  parties  intended 
this  international  tribunal  to  adjudicate  upon  the  claims  of  acknow- 
ledged citizens  or  subjects  upon  their  own  governments.  The  effect 
also  of  acquiescence  in  the  interpretation  to  be  given  to  the  words 
"British  subjects"  in  the  treaty  contended  for  by  the  learned  agent 
of  the  United  States,  would  be  that  henceforth  no  merchant  residing 
in  a  foreign  country  could  ever  claim  the  assistance  and  protection  of 
the  government  of  the  country  of  which  he  was  a  native,  and  to  which 
country  he  owes  allegiance.  Thus  an  English  merchant  residing  in 
France,  or  an  American  merchant  residing  in  England,  is  to  be  con- 
sidered as  barred  from  appealing  to  England  or  America  for  protection 
and  assistance. 

Mr.  Everett,  in  his  correspondence  with  Lord  Aberdeen  on  the 
rough  rice  question,  incidentally  maintains  the  same  view  of  the  law 
and  practice  of  nations  which  I  have  already  expressed,  although  he 
carries  it  somewhat  further  than  is  necessary  for  the  purposes  of  the 
argument  in  the  present  case.  The  American  minister  there  insisted 
on  his  right  to  interfere,  under  the  treaty  of  commerce  between  Great 
Britain  and  the  United  States,  on  behalf  of  an  English  firm,  claiming 
compensation  for  pecuniary  damage  done  in  consequence  of  a  non- 
observance  of  the  treaty,  because  one  of  the  members  of  that  firm  was 
an  American  citizen,  domiciled  in  England.  If  in  that  case  domicil 
in  England  had  ousted  the  American  partner  of  his  right  to  appeal  to 
the  United  States  government  for  protection,  or  for  its  interference  in 
obtaining  for  him  the  compensation  due  for  an  injury  thus  done  to 
him,  Mr.  Everett  was  wrong  in  claiming  the  right  to  interfere,  and 
Lord  Aberdeen  was  wrong  in  admitting  it. 

My  judgment  is  founded  on  the  following  conclusions,  at  which, 
after  a  careful  consideration  of  the  arguments  that  have  been  advanced 
on  either  side,  I  have  arrived.  To  recapitulate  them,  they  are  shortly 
as  follows : 

That  the  Messrs.  Laurent  are  admitted  to  be — whatever  else  they 
may  also  be — British  subjects. 


CONVENTION    WITH   GREAT   BRITAIN. 


167 


sands  of 
can  gov- 
ioners  as 
(rotation 
vould  be 
intended 
acknow- 
he  effect 
^le  words 
ed  agent 
residing 
ection  of 
to  which 
jiding  in 
3  be  con- 
rotection 

I  on  the 

'  the  law 

lOUgh  he 

3s  of  the 

insisted 

en  Great 

aiming 

a  non- 

irm  was 

domicil 

>peal to 

rence  in 

done  to 

ere,  and 

which, 

ivanced 

shortly 

Ise  they 


H 


That  mere  residence  in  a  foreign  country,  in  time  of  peace  or  war, 
docs  not  deprive  a  merchant  of  his  original  citizenship  or  of  the  right 
to  call  for  tho  protection  of  the  government  of  his  native  country ; 
although  his  continued  residence  in  the  country  in  time  of  war  gives 
the  right  to  the  enemies  of  that  country  to  consider  and  treat  him  as 
an  enemy. 

That  although  such  residence  may  clothe  him  with  certain  rights 
of  citizenship  and  involve  certain  liabilities,  it  does  not  divest  him 
of  his  original  national  character. 

That  the  practice  and  usage  of  nations  sanction  the  interference  of 
a  government  on  behalf  of  its  subjects  or  citizens  resident  abroad,  as 
well  as  at  liome. 

That  consuls  and  diplomatic  agents  are  specially  instructed  to  watch 
over  and  protect  the  subjects  of  the  countries  of  their  respective  goy- 
eiuments  resident  in  the  countries  to  which  they  may  be  accredited. 

That  such  being  the  usage  and  practice  of  nations,  the  words  used 
in  this  treaty  are  to  be  interpreted  in  connexion  with  and  by  the  aid 
of  such  usage  and  practice. 

That,  consequently,  it  was  the  intention  of  the  contracting  parties  to 
the  convention  of  1853,  that  the  commissioners  appointed  under  it 
should  decide  according  to  justice  and  equity  upon  the  claims  of 
individuals  in  the  position  of  the  Messrs.  Laurent. 


U 


!■  Irl 


:i!l 


'Si 


iii; 


vn 


t 


1 


^  ■.■■  ;.■' 
-■■  ii 


'   f     :.'.'ii 


158 


ADJUSTMENT   OP  CLAIMS    UNDER   THE 


'  'i 
III 


II 
i  V< 


11' 


Bates,  Umpire: 

The  claim  hy  the  Messrs.  Laurent  is  for  damages  which,  tlicy  allege, 
they  received  in  the  year  1847,  from  the  conduct  of  the  United  States 
General,  Scott,  who  captured  the  city  of  Mexico  in  that  year.  The 
treaty  of  peace  between  the  United  States  and  Mexico  settled  all 
claims  of  Mexican  citizens  against  the  United  States,  The  Messrs. 
Laurent  present  their  claim  as  British  subjects.  It  is  (i[uite  clear  that 
none  but  British  subjects  or  citizens  of  the  United  States  can  have  any 
loctis  standi  before  this  commission. 

It  is  denied,  (m  behalf  of  the  United  .States,  that  the  Messrs.  Laurent 
can  claim  to  be  British  subjects  within  the  meaning  of  the  words 
**  British  subjects"  as  used  in  the  convention  by  virtue  of  which  this 
commission  was  appointed ;  and  this  seems  to  me  to  be  the  correct 
view  of  the  case,  both  on  principle  and  with  reference  to  the  reported 
authorities  on  the  subject. 

According  to  the  municipal  law  of  England,  the  Messrs,  Laurent 
may  be,  for  some  purposes,  still  British  subjects,  but  the  language  of 
the  convention  must  be  construed  in  accordance  with  the  law  of  na- 
tions, and  not  according  to  the  laws  of  any  on  nation  in  particular; 
and  it  is  sufficiently  clear  that,  by  the  rules  of  international  law,  and 
for  the  purposes  of  this  commission,  the  Messrs.  Laurent  were,  for  the 
time  being  at  least,  Mexican  citizens  and  not  British  subjects. 

There  are  many  authorities  which  bear  on  this  question.  Lord 
Stowell,  in  giving  judgment  in  the  case  of  the  "  Matchless,"  (1  Hag- 
gard, page  97,)  said  :  "Upon  such  a  question  it  has  certainly  been  laid 
<lown  by  accredited  writers  on  general  law,  and  upon  grounds  appar- 
ently not  unreasonable,  that  if  a  merchant  expatriates  himself  as  a 
merchant  to  carry  on  the  trade  of  another  country,  exporting  its  produce, 
paying  its  taxes,  employing  its  people,  and  expending  his  spirit,  Ms  indus- 
try, and  his  capital  in  its  service,  he  is  to  he  deemed  a  merchant  of  that 
<ountry.  noticithstanding  he  may,  in  some  respects,  he  less  favored  in  that 
country  than  one  of  its  native  subjects.  Our  "wn  country,  which  is 
charged  with  holding  the  doctrine  of  unextinguishable  allegiance  more 
tenaciously  than  others,  is  n-i  stranger  to  this  rule.  Its  highest  tri- 
bunals whicli  adjudicate  the  tiational  character  of  property  taken  in 
war  a})ply  it  universally.  They  ])rivilege  persons  residing  in  a  neu- 
tral country  to  trade  as  i'reely  with  the  enemies  of  Great  Britain  in 


,1'i 


CONVENTION    WITH    GREAT   BRITAIN. 


159 


allege, 
1  States 
r.  The 
tied  all 

Messrs. 
ear  that 
lave  any 


,  Laurent 
iguage  of 
aw  of  na- 
[irticular ; 
law,  and 
e,  for  the 


n. 


Lord 
(1  Hag- 
jeen  laid 
la  appar- 
nself  OS  a 
produce, 
his  indus- 
mt  of  that 
•ed  in  that 
which  is 
ance  more 
s^hest  tri- 
talccn  in 
in  a  noil- 
Britain  in 


war  as  the  native  suhject  of  that  neutral  country,  although  our  own 
resident  merchants  cannot  without  special  permission  of  the  crown." 
The  words  of  Lord  Stowell  apply  exactly  to  the  case  of  the  Messrs. 
Laurent.  They,  as  far  as  in  them  lay,  had  expatriated  themselves  ; 
they  had  repided  twenty  years  in  Mexico  carrying  on  their  husiness, 
and  with  every  intention  of  remaining  there,  as  is  sufficiently  evidenced 
by  their  wishing  to  buy  the  freeliold  of  the  house  in  which  they  were 
living  ;  and,  according  to  Lord  Stowell's  judgment,  ought  to  be  con- 
sidered Mexican  citizens. 

In  the  case  of  the  President,    "  liohimon,  277,)  which  vessel  was 
captured  on  a  voyage  from  the  Cape  of  Good  Hope  to  Europe,  and 
claimed  for  Mr.  J.  Elmslie,  as  a  citizen  of  the  United  States,  it  ap- 
peared that  he  had  been  a  British-born  subject  who  had  gone  to  the 
Cape  during  the  last  war,  and  had  been  employed  as  American  consul 
at  that  place.     In  giving  judgment.  Sir  William  Scott  said:    "This 
court  must,  I  think,  surrender  every  principle  on  which  it  has  acted 
in  considering  the  question  of  national  character  if  it  was  to  restore 
this  vessel.     The  claimant  is  described  to  have  been  for  many  years 
settled  at  the  Cape,  with  an  established  house  of  trade,  and  as  a 
merchant  of  that  place,  and  must  be  taken  as  a  subject  of  the  enemy's 
country."     (The  Dutch  being  then  at  war  with  England.) 

In  a  recent  case,  "  the  Aina,"  decided  in  the  admiralty  court  in  June 
last :  The  claimant  was  a  native  of  the  free  Hans  Town  of  Lubec, 
and  consul  of  his  Majesty  the  King  of  the  Netherlands,  at  Helsingfors, 
in  Finland ;  he  had  lent  money,  before  the  war  with  Kussia,  on  bot- 
tomry on  the  ship,  which  ship  was  captured  by  the  British  fleet  in  the 
Baltic.     Doctor  Lushington,  in  giving  judgment,  is  reported  to  have 
said:    "Two  questions  have  ari.scn  with  respect  to  the  present  claim; 
first  as  to  the  national  character  of  the  claimant,  whether  he  is  to  be 
considered  an  enemy  or  a  neutral.     With  reference  to  this  question, 
it  is  stated  that  he  "is  a  citizen  of  the  free  Hans  Town  of  Lubec,  and 
consul  of  liis  Majesty  the  King  of  the  Netherlands,  at  Helsingfors,  in 
Finland.     Upon  this  I  can  put  but  one  construction  :  that  he  is  a 
resident  in  Finland,  and  carrying  on  business  there.     I  take  it  to  be 
a  point  beyond  controversy  that,  where  a  neutral,  after  the  commence- 
ment of  the  war,  continues  to  reside  in  the  enemy's  country  for  the 
purposes  of  trade,  he  is  considered  as  adhering  to  the  enemy,  and  is 
disqualified  from  claiming  as  a  neutral  altogether." 


I 


ir 


:i      t 


'■«* 


I.i^i 


;  i 


ICO 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


I  iim  unablo  to  Hce  why  tlio  priiicipk  '  .  .  ''own  so  fully  in  tliese 
cascH  (uikI  many  more  might  bo  cited)  sho  i  m:  ■  h  ai^plied  to  that 
of  the  McBsrs.  Laurent.  They  liad,  as  bcioro  observed,  long  been 
residents  in  Mexico,  they  had  a  fixed  homo  there,  with  apparently 
every  intention  of  continuing  to  reside  there,  insomuch  that  they  en- 
deavored t(i  buy  a  porti(m  of  the  soil  of  Mexico. 

I  think,  therefore,  that  for  the  jmrposes  of  this  commission  they 
were  Mexican  citizens  and  not  British  subjects,  and  that  the  commis- 
sioners do  not  form  a  tribunal  comjietent  to  entertain  their  claims. 


CONVENTION   WITH   GREAT  BRITAIN. 


Ifl 


OEOIIGE  IIOUOHTON. 


Where  a  nhip,  containing  property  of  an  F.ngliiili  nubjcct,  vvni  «oir.od  by  a  piratical  veisol  on 
tlio  higii  Hoai,  and  was  aubacquently  roca|iturcd  by  a  United  States  cruiaert  and  the  ahip  and 
property  was  sold,  and  the  prorccdg  went  into  tlio  I'nitcd  Statca  treasury,  subjoct  tu  certain 
claiina  of  the  captora,  as  eatabliHiiud  by  law  ;  held  that  remuneration  ahould  be  made  to  the 
owner,  deducting  reasonable  cxpenaoB  and  aalvago.  '• 


The  claimant  is  a  British  merchant,  who  was  on  his  way  from  the 
Canary  Islands,  in  a  Spanish  vessel,  to  Madeira,  when,  on  the  23d  day 
of  May,  1816,  they  were  seized  by  a  pirate,  who  put  most  of  the  crew 
to  death  and  robbed  the  vessel,  whereby  he  lost,  as  he  alleges,  £1,500 
in  gold  and  silver. 

The  vessel  was  soon  afterwards  taken  by  a  United  States  cruiser, 
and  the  crew  was  tried  for  piracy  and  the  vessel  sold ;  the  proceeds  of 
which,  in  part,  with  half  of  what  was  found  on  board  at  the  time  of 
the  seizure,  went  into  the  United  States  treasury. 

The  memorialist  brings  his  claim  against  the  United  States  govern- 
ment for  such  just  sum  as  the  commissioners  may  deem  right  to  award 
him,  after  deduction  of  proper  salvage  and  expenses. 

Hannen,  agent  and  counsel  for  Great  Britain. 

Thomas,  agent  and  counsel  for  the  United  States. 


11 


162 


ADJUSTMENT   OP  CLAIMS   UNDER   THE 


Upiiam,  United  States  Commissioner^  delivered  the  opinion  of  the 
commission : 

This  case  has  been  submitted  to  us  by  the  chiimants  and  counsel,  as 
one  entitled,  as  far  as  we  can  consider  it,  to  our  sympathy,  and  to  such 
relief  as  may  be  granted  Avithin  the  powers  committed  to  us. 

The  prominent  facts  set  forth  in  the  memorial  of  the  claimant  are 
clearly  shown .  The  property  of  which  he  was  divested,  in  no  manner 
passed  to  those  who  deprived  him  of  it,  and  its  recapture  by  a  govern- 
ment vessel  of  the  United  States,  did  not  change  the  right  of  owner- 
ship, except  to  the  extent  of  such  just  claim  of  salvage  as  should  be 
allowed  on  this  account. 

On  every  principle  of  justice  and  equity,  and,  as  we  believe,  of 
sound  international  law,  the  claimant  is  entitled  to  remuneration  to 
the  extent  named.  It  is  to  be  regretted,  however,  that  application 
was  not  early  made  to  sustain  the  claim,  by  the  requisite  j)roof,  before 
the  proper  tribunals  appointed  for  this  purpose,  but  we  do  not  consider 
this  omission  should  preclude  him  from  all  relief  here. 

The  right  to  recover  in  such  case  is  not  a  mere  matter  of  clemency 
on  our  part.  The  obligation  to  make  compensation^  or  restoration, 
"where  property  has  been  piratically  seized  on  the  high  seas,  has  been 
recognized  in  the  treaties  between  the  two  governments,  and  their  aid 
mutually  pledged  both  to  punish  such  offences  and  to  restore  such 
property. 

The  20th  article  of  the  treaty  of  amity,  commerce,  and  navigation, 
concluded  between  the  United  States  and  Great  Britain  on  the  19th 
of  November,  1*794,  provides  that  the  governments  will  exert  them- 
selves to  bring  to  condign  jumishment  all  persons  concerned  in  pirat- 
ical otfences,  and  that  "all  ships,  witli  the  goods  or  merchandises 
taken  by  xheni,  and  brought  into  the  port  of  either  of  the  said  partie.s, 
shall  be  seized,  as  I'ar  as  they  can  be  discovered,  and  shall  be  restore<l 
to  the  owners,  or  their  factors  or  agents,  duly  dep.uted  and  authorized 
in  writing  by  them,  (proi)er  evidence  })eing  first  given  in  the  court  of 
admiralty  for  proving  the  pro[)erty,)  even  in  case  sucli  effects  shouhl 
have  passed  into  other  hands  by  sale,  if  it  be  proved  that  the  buyers 
knew,  or  had  good  reason  to  suspect^  that  they  had  been  piratically 
taken."— (1  Laics  of  United  Stat€,s,  cd.  of  1815,^/.  218.) 


CONVENTION   WITH   GREAT  BRITAIN. 


168 


This  provision  contemplates  seasonable  application  and  proper  proof 
of  OAvneiship  to  be  filed  in  the  court  of  admiralty  to  secure  such  claim. 
The  justice  of  it  is,  however,  acknowledged,  and  we  feel  ourselves 
empowered  to  go  behind  the  mere  form  of  relief,  and  grant  some  com- 
pensation for  the  loss  incurred;  and  we  therefore  allow  the  claim, 
deducting  such  reasonable  expenses  and  salvage  as  is  established  by 
the  laws  of  the  United  States. 


i- 


If  I 


164 


ADJUSTMENT  OP  CLAIMS   UNDER  THE 


HUDSON'S  BAY  COMPANY. 

Prior  to  the  extension  of  a  territorial  government  over  Oregon  Territory,  the  settlors  had 
voluntarily  formed  themselves  into  a  temporary  government.  While  in  this  situation  war 
occurred  with  the  Indians,  and  various  settlers  were  killed  or  taken  into  captivity  by 
them.  Application  of  the  then  existing  government  was  made  to  the  Hudson's  Bay  ( Company 
for  assistance,  which  was  rendered,  and  resulted  in  the  relief  and  restoration  of  the  Ameri- 
cans who  had  been  captured  ;  held  that  a  claim  for  compensation  against  the  United  States 
under  such  circumstances  should  be  allowed. 

HM,  also,  that  a  similar  claim  for  expenditures  incurred  in  procuring,  by  request  of 
United  States  officers  on  the  coast,  the  reloaso  of  American  shipwrecked  mariners  from  cap- 
tivity by  the  Indians  should  be  allowed. 


ill 


if 

Hi 


ilR  i 


In  the  autumn  of  1847,  a  number  of  American  emigrants  and  set- 
tlers in  Oregon  were  attacked  and  captured  by  tlie  Cayeuse  In- 
dians. In  this  attack  Dr.  Whitman,  an  American  missionary,  and 
his  wife  and  eleven  others,  were  murdered,  and  sixty-four  persons 
captured.  These  captives  were  ransomed  tlirough  the  agency  of  the 
Hudson's  Bay  Company. 

The  country  was  not  at  that  time  under  a  government  regularly 
established  by  the  United  States,  but  the  settlers  had  formed  them- 
selves into  an  organization  and  government  of  their  own,  and  they 
immediately  passed  resolves  authorizing  the  enlistment  of  five  hun- 
dred men,  and  the  borrowing  of  ten  thousand  dollars,  to  repel  the 
attacks  of  the  Indians,  and  appointed  commissioners  to  negotiate  a  loan. 

They  applied  for  this  purpose  to  the  Hudson's  Bay  Company.  Their 
agents  did  not  feel  authorized  to  make  a  loan,  but  rendered  to  the 
volunteers  who  were  raised  assistance  in  jjrovisions  and  stores  to  the 
amount  of  $1,800,  as  is  alleged  by  them,  and  is  acknowledged  by  the 
officers  of  the  said  government.  Of  this  amount,  it  appears  that  $599 
have  been  paid  by  the  Oregon  government,  leaving  a  balance  due  of 
$1,201. 

The  company  also  claim  a  further  sum  of  $1,838  91  of  the  United 
States  government  for  goods  supplied  from  V^couver's  Island  in 
December,  1851,  on  the  application  of  American  officers  on  tliat  coast 
for  the  purpose  of  procuring  the  release  of  certain  American  mariners 
who  were  shipwrecked  near  Queen  Charlotte's  Sound,  and  were  re- 
tained in  captivity  by  the  Indians. 

Hannkn,  agent  and  counsel  for  Great  Britain. 

Thomas,  agent  and  counsel  for  the  United  States. 


CONVENTION   WITH   GREAT   BRITAIN. 


165 


tiers  had 
,tion  war 
tivity  by 
'  Company 
0  Ameri- 
0(1  States 

equest  of 
from  cap- 


,nd  set- 
uso  In- 
,ry,  and 
persons 
'  of  the 

?gularl\r 

i  thera- 

nd  they 

ve  hun- 

pel  the 

!  a  loan. 

Their 

to  the 

s  to  the 

by  the 

at  $599 

e  due  of 

United 

and  in 

at  coast 

lariners 

vere  re- 


HouNBY,  British  Commissoner,  delivered  the  opinion  of  the  commission : 

In  this  case,  we  are  fortunately  relieved  from  any  conflict  between 
the  parties,  as  I  understand  it  to  be  conceded  that  the  case  is  submitted 
to  our  consideration  for  such  allowance  as  we  think  is  justly  sustained. 

It  will  not  be  denied  that  the  settlers  of  the  Oregon  Territory 
were  entitled  to  the  protection  and  aid  of  the  U  nited  States  govern- 
ment. She  had  not,  up  to  the  period  of  the  calamity  referred  to, 
extended  a  formal  territorial  government  over  the  country,  but  her 
citizens,  in  considerable  numbers,  had  gone  on,  in  advance  of  provision 
made  for  them  in  that  respect,  and  were  occupying  the  country  for  the 
ultimate  benefit  of  the  United  States,  and  with  the  early  expectation 
of  the  formal  extension  of  the  powers  of  the  government  over  them. 

While  in  this  situation,  they  had  established,  temporarily,  a  gov- 
ernment of  their  own,  and  were  attacked  by  the  Indians,  under 
circumstances  of  much  barbarity,  and  which  wero  calculated  to  put  in 
jeopardy  the  safety  of  the  whole  colony. 

The  circumstances  required  immediate  effort  and  assistance,  and 
this  assistance,  as  far  as  was  in  their  power,  was  promptly  rendered 
by  the  agents  of  the  Hudson's  Bay  Company. 

The  form  of  the  claim  as  it  originally  existed,  was  not  directly 
against  the  United  States,  but  no  objection  is  interposed  from  that 
cause.  The  assistance  is  precisely  of  the  oiiaracter  the  government 
would  have  rendered,  could  application  have  been  made  to  it ;  and, 
on  every  consideration,  we  are  qsvtu  sure  we  shall  have  its  approba- 
tion in  the  allowance  of  the  claim  vvi'icii  appears  to  be  preferred  here 
for  the  first  time. 

The  other  item  of  clair,  depends  ot-.  circumstances  somewhat 
similar. 

Assistance  rendered  to  shipwrecked  mariners  is  in  conformity  to  the 
established  policy  of  both  governments  through  their  consuls,  and 
other  officers  abroad,  and  in  tlus  case,  the  captivity  of  these  men  by 
savages  was  superadded. 

The  assistance  rendered  through  the  agent.;  of  this  company,  made 
by  request  of  Americans  on  the  coast,  securt'd  the  release  of  these  un- 
fortunate men,  and  I  am  happy  in  having  tuA  concurrence  of  my  col- 
league in  granting  full  renmneration  for  the  expenditures  incurred  in 
ell'ecting  so  laudable  an  object.  The  claims  for  these  services  are 
therefore  allowed. 


liii 


r 


i  ■> 


ni 


166 


ADJUSTMENT  OF  CLAIMS  UNDER   THE 


WILLIAM  COOK  AND  OTHERS. 


Where  claim  was  presented  by  American  citizens  as  next  of  kin  and  lieir  of  a  deceased 
intestate  in  England,  whose  property  had  gone  into  custody  of  the  crown,  for  want  of  heirs, 
held  that  it  did  not  come  within  the  jurisdiction  of  the  commissioners,  and  was  not  within  the 
class  of  cases  designed  to  bo  embraced  in  the  convention. 

The  fact  that  a  case  is  brought  within  the  letter  of  the  convention  is  not  conclusive  as  to 
the  question  of  jurisdiction.  The  commissioners  may  go  behind  this  to  inquire  whether  it  is 
within  the  class  of  cases  that  have  been  recognized  and  acted  upon  as  matters  of  international 
adjudication. 


m 


This  is  a  claim  for  £24,000  and  upwards,  alleged  to  be  in  the  custody 
of  her  Majesty's  government,  it  being  the  personal  property,  and 
effects  of  the  late  Frances  Mary  Shard,  widow,  formerly  of  Trenton, 
New  Jersey. 

The  claimants  assert  that  they  are  the  only  surviving  relations,  end 
next  of  kin  of  Mrs.  Shard,  and  as  such,  are  entitled  to  the  property  of 
which  she  died  possessed.  That  Frances  Mary  Shard  was  the  relict 
of  William  Shard,  esq.,  and  was  the  daughter  of  Robert  Rutherford, 
(an  innkeeper,)  and  his  wife  Margaret,  and  was  horn  in  Trenton,  about 
the  year  1758. 

That  she  left  Trenton  when  about  fifteen  years  of  age,  went  to 
Europe,  and  married  in  London,  in  1788,  and  at  the  time  of  her  death, 
in  1811),  had  no  surviving  relatives,  excepting  the  children  of  her 
father's  sister,  who,  in  1743,  married  George  Davis,  a  tailor,  at  Tren- 
ton, from  whom  the  claimants  are  descended. 

The  claimants  allege  that  the  property  of  Mrs.  Shard  has  gone  into 
the  custody  of  the  British  government,  to  be  holden  in  trust  for  her 
heirs,  and  that  they  now  make  their  claim  aa  such,  and  as  American 
citizens  for  its  recovery  from  the  British  government. 

Exception  was  taken  to  the  jurisdiction  of  the  commissiouers,  on 
grounds  that  will  appear  in  the  points  taken  by  the  counsel,  and  was 
fully  argued,  and  submitted  on  this  question. 


CONVENTION   WITH   GREAT   BRITAIN. 


167 


Hannen,  counsel  and  agent  for  Great  Britain  : 

Contended  that  the  claim  was  not  within  the  jurisdiction  of  the 
commissioners. 

The  convention  was  entered  into  for  the  settlement  of  those  claiming 
only  upon  either  government^  which  might  properly  have  heen  made 
the  subject  of  diplomatic  action  or  intervention.  Had  this  case  ever 
been  presented  to  the  notice  of  her  Majesty's  government  by  that  of 
the  United  States,  previous  to  this  convention  being  entered  into,  the 
obvious  answer  would  hn'e  been,  that  it  was  a  matter  exclusively 
within  the  cognizance  of  the  ordinary  courts  of  law,  and  that  the 
claimants  must  establish  their  rights  there  in  the  same  way  that 
English  subjects  would  be  bound  to  do  under  similar  circumstances. 

The  same  answer  must  be  given  now,  that  the  case  is  presented  to 
the  commissioners.  It  is  not  intended  to  invest  them  with  a  supreme 
power  in  all  cases  in  which  a  citizen  or  subject  of  the  one  country 
ralglit  assert  a  claim  against  the  government  of  the  other.  Their 
commission  docs  not  authorize  them  to  assume  the  peculiar  functions 
of  the  courts  of  either  country. 

The  universal  doctrine  now  recognized  by  the  common  law  is,  that 
succession  to  personal  property  is  governed,  exclusively,  by  the  law 
of  the  actual  domicil  of  the  iiitestate  at  the  time  of  his  death.  (Story's 
Conflict  of  Laivs,  sec.  451.) 

It  is  also  well  settled  by  the  same  authority,  sec.  513,  that  an  estate 
cannot  be  administered  in  the  absence  of  a  personal  representatire, 
and  such  personal  representative  in  England,  must  obtain  his  right  to 
represent  the  estate  from  the  ecclesiastical  courts  of  the  country. 

2.  It  is  further  contended  that  the  property  of  Mrs.  Shard  had  never 
vested  in  the  crown,  but  was  holden  by  specific  agents  of  the  crown, 
as  trustees,  answerable  in  the  courts  of  the  country  to  any  rightful 
administrator  who  might  appear,  and  that  the  funds  thus  holden  were, 
in  no  proper  manner,  the  funds  of  the  government. 


'  '  V^t\  ^ 


iiii^ 


f-  *','«■'' 


.,  ■ 


i 


168 


ADJUSTMENT  OF  CLAIMS  UNDER   THE 


Thomas,  Agent  and  Counsel  for  tlie  United  States,  and  J.  L.  Clark, 
counsel  for  claimants,  contended  ; 

I.  That  the  method  of  treating  similar  cases  in  the  English  courts 
was  inconclusive,  as  to  the  question  of  jurisdiction,  and  that  it  was  a 
well  known  principle  that  whenever  treaties  between  nations  come 
into  collision  with  local  regulations  they  entirely  override  and  annul 
them. 

This  case,  is,  in  its  terms,  clearly  within  the  provisions  of  the  treaty 
of  February  8,  1853,  and  any  supposed  inconvenience  in  adjudicating 
on  that  class  of  cases  should  not  be  permitted  to  oust  the  commission- 
ers of  their  jurisdiction  over  them. 

II.  Her  Majesty's  government  has  an  interest  in  the  subject  matter 
of  dispute.  The  property  of  Mrs.  K^hard  is  now  in  the  hands  of  the 
government,  and  is  claimed  as  the  property  of  the  government. 

Formerly  the  right  of  ultimate  heirship  was  one  of  the  personal 
rights  of  the  crown,  but  this  right,  with  various  other  rights,  pertain- 
ing to  the  persona]  t  ocupant  of  the  crown,  has  long  since  been  trans- 
fered  to  and  vested  in,  tlie  gov'ornment,  or  crown,  as  distinct  from  the 
person.  This  surrender  was  made  by  George  III,  in  consideration  of 
a  clear  yearly  revenue  settled  upon  liim,  to  be  paid  out  of  the  aggre- 
gate funds  of  the  government,  for  the  support  of  his  Majesty's  house- 
hold. (See  act  of  1  Geo.  Ill,  chap.  12.)  Similar  provisions  have  been 
made  on  each  subsequent  accession  to  the  throne,  as  see  1  Geo.  IF, 
chap.  1;  2  and  3   Wtlllam  IV,  chap.  116  ;  1  and  2  Victoria,  chap.  2. 

In  this  case  the  Queen,  in  her  private  capacity,  is  wholly  uninter- 
ested as  to  what  is  done  with  the  property  now  claimed.  Her  personal 
income  is,  in  no  manner,  increased,  diminished,  or  effected  by  any 
disposition  which  has  been,  or  may  be  hereafter  made  of  it. 


W^'- 


CONVENTION   WITH   GREAT  BRITAIN. 


169 


Upham,  United  Stuto8  Commissioner,  delivered  the  opinion  of  the 
commission : 

This  case  has  been  ably  argued  on  the  question,  what  are  the  rights 
of  the  crown  as  to.  this  property,  and  whether  it  is  a  mere  personal 
claim  or  a  claim  of  tlie  government.  The  laws  settling  on  the  personal 
representative  of  the  crown,  from  time  to  time,  a  fixed  yearly  income, 
on  the  express  relinquishment  of  the  former  uncertain  and  changeable 
revenues  of  the  crown,  seems  to  place  them  on  the  same  basis  as  other 


revenues 
m 


The  act  of  39  and  40,  Geo.  Ill,  also  expressly  declares  that  the 
representatives  of  the  crown  arre  unable  to  dispose  of,  by  will  or  other- 
wise, any  property  which  comes  to  them  with  or  in  right  of  the  crown. 
Tliis  would  seem  to  set  at  rest  any  claim  to  control  over  such  revenufci' 
as  personal  property. 

There  is  a  question,  however,  behind  this  which  I  regard  as  fully 
conclusive  of  our  jurisdiction  in  this  case. 

It  may  be  conceded  that  the  claim  comes  nominally  within  the  letter 
of  the  convention.  This,  however,  does  not  settle  the  question  of 
jurisdiction.  It  is  quite  clear  we  may  go  beyond  its  terms  to  the  con- 
sideration of  the  various  classes  of  cases  embraced  in  ordinary  inter- 
national controversies ;  and  if  any  class  of  claims  have  not  been 
lierctofore  regarded  as  matters  of  international  adjustment,  we  are 
not  necessarily  bound  to  regard  them  as  included  within  the  provisions 
of  the  convention. 

No  instance  can  be  found  of  the  interference  of  government  with  the 
question  of  ordinary  heirship  and  succession  of  estates  in  other  juris- 
dictions. They  are  over  left  to  local  action  and  jurisdiction  of  the 
courts  of  tlic  countries  where  situated.  There  is  every  reason  why  it 
should  be  so. 

The  claim  comes  before  us,  then,  in  altogether  an  unwonted  position ; 
and  we  are  fully  of  the  opinion  that  it  is  not  of  the  class  of  cases  «'?- 
signed  to  be  embraced  within  the  convention^  and  that  we  have  no 
jurisdiction  over  it. 


I  :;!} 


m 


170 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


SCHOONER  WASHINGTON. 


Constrvction  of  ihe  treaty  of  1818  relative  to  fisheries  on  the  coasts  of  J^orth  America. 

Tiio  clause  in  said  treaty  in  which  the  United  States  renounced  the  liberty  "to  take,  dry, 
and  cure  iiah,  on  certain  coasts,  bays,  harbors,  and  creeks  of  his  Britannic  Majesty's  do- 
minions of  North  America,"  held  not  to  include  the  Bay  of  Fundy . 

The  Bay  of  Fundy  held  to  be  an  open  arm  of  the  sea,  so  as  not  to  be  subject  to  the  exclu- 
sive rigiit  of  Great  Britain  as  to  fisheries. 


if 


The  schooner  Washington,  while  employed  in  fishing  in  the  Bay  of 
Fundy,  ten  miles  distant  from  the  shore,  was  seized  by  her  Britannic 
Majesty's  cruiser,  and  taken  to  Yarmouth,  in  Nova  Scotia,  and  con- 
demned, on  the  ground  of  being  engaged  in  fishing  in  British  waters, 
in  violation  of  the  provisions  of  the  treaty  relative  to  the  fisheries, 
entered  into  between  the  United  States  and  the  British  government 
on  October  20,  1818. 

Claim  of  damage  was  made  before  the  commission  on  the  ground 
that  the  seizure  was  in  violation  of  the  provisions  of  that  treaty  and 
of  the  law  of  nations. 

Thomas,  agent  and  counsel  for  the  United  States. 

Hannen,  agent  and  counsel  for  Great  Britain. 


[■'  « 


CONVENTION   WITH    GREAT   BRITAIN. 


171 


Upham,  United  States  Commissioner : 

In  1843  the  fishing  schooner  Washington  was  seized  by  her  Britan- 
nic Majesty's  cruiser,  when  fishing,  broad,  as  it  is  termed,  in  what  is 
called  the  Bay  of  Filndy,  ten  miles  from  the  sliore. 

This  seizure  was  justified  on  two  grounds. 

1.  That  the  Bay  of  Fundy  was  an  indentation  of  tlie  sea,  extend- 
ing up  into  the  land,  both  shores  of  which  belonged  to  Great  Britain, 
and  that  for  this  reason  she  had,  by  virtue  of  the  law  of  nations,  the 
exclusive  jurisdiction  over  this  sheet  of  water,  and  the  sole  right  of 
taking  fish  within  it. 

2.  It  was  contended  that,  by  a  fair  construction  of  the  treaty  of 
October  20,  1818,  between  Great  Britain  and  the  United  States,  the 
United  States  had  renounced  the  liberty,  heretofore  enjoyed  or  claimed, 
to  take  fish  on  certain  bays,  creeks,  or  harbors,  including,  as  was 
contended,  the  Bay  of  Fundy,  and  other  similar  waters  within  cer- 
tain limits  described  by  the  treaty. 

The  article  containing  this  renunciation  has  various  other  provi- 
sions, supposed  to  throw  some  light  on  the  clause  of  renunciation  re- 
ferred to.  I  therefore  quote  it  entire,  which  is  as  follows:  "  Whereas 
differences  have  arisen  respecting  the  liberty  claimed  by  the  United 
States  to  take,  dry,  and  cure  fish  on  certain  coasts,  hays,  harbors, 
and  creeks  of  his  Britannic  Majesty's  dominions  in  America,  it  is 
agreed  that  the  inhabitants  of  the  United  States  shall  have,  in  com- 
mon with  the  subjects  of  her  Britannic  Majesty,  the  liberty  to  take 
fish  on  certain  portions  of  the  southern,  western,  and  northern  coast 
of  Newfoundland,  and  also  on  the  coasts,  hays,  harbors,  and  creeks 
from  Mount  Joly  on  the  southern  coast  of  Labrador,  to  and  through 
the  Straits  of  Belle  Isle,  and  thence  northwardly  indefinitely  along 
the  coast ;  and  that  the  American  fishermen  shall  have  liberty  to  dry 
and  cure  fish  in  any  of  the  unsettled  hays,  harbors,  and  creeks  of 
said  described  coasts,  until  the  same  become  settled.  And  the  United 
States  renounce  the  liberty  heretofore  enjoyed  or  claimed  by  the  inhab- 
itants thereof,  to  take,  dry,  or  cure  fish  on  or  within  three  marine  miles 
of  any  of  the  coasts,  hays,  creeks,  or  harbors  of  his  Britannic  Ma- 
jesty's dominions  in  America,  not  included  within  the  above  mentioned 
limits :  provided,  however,  that  the  American  fishermen  shall  be 
admitted  to  enter  such  hays  or  harbors  for  the  purpose  of  shelter, 


172 


ADJUSTMENT    OF  CLAIMS  UNDER  THE 


ill 


w.f 


and  of  repairing  damages  (herein,  of  purchasing  wood,  and  of  obtain- 
ing luater,  and  for  no  other  purpose  whatever.  But  they  shall  bo 
under  sudi  restrictions  us  may  be  necessary  to  prevent  their  taking, 
drying,  or  curing  fish  therein,  or  in  any  other  manner  whatever 
abusing  the  privileges  hereby  reserved  to  them." 

The  first  gri)und  that  has  been  taken  in  the  argument  of  this  case 
is  that,  independent  of  this  treaty,  (rreat  Britain  had  the  exclusive 
jurisdiction  over  the  Bay  of  Fundy  as  part  of  her  own  dominions,  by 
tho  law  of  nations.  As  this  matter,  ho  vever,  is  settled  by  the  treaty, 
the  j)Osition  seems  to  have  no  bearing  on  the  case,  except  as  it  may 
tend  to  show  that  the  United  States  wduld  be  more  likely  to  renounce 
the  right  of  fishing  within  limits  thus  secured  to  Great  Britain  by  the 
law  of  nations,  than  if  she  had  no  such  claim  to  jurisdiction. 

But  on  this  point  we  are  wholly  at  issue.  The  law  of  nations  does 
not,  as  I  believe,  give  exclusive  jurisdiction  over  any  such  large  arms 
of  tho  ocean.  ' 

Rights  over  the  ocean  were  originally  common  to  all  nations,  and 
they  can  be  relinquished  only  by  common  consent.  For  certain  pur- 
poses of  protection  and  proper  supervision  and  collection  of  revenue, 
tho  dominion  of  the  land  has  been  extended  over  small  enclosed  arms 
of  the  ocean,  and  portions  of  the  open  sea,  immediately  contiguous  to 
th()  shores.  But  beyond  this,  unless  it  has  been  expressly  relinquished 
by  treaty  or  other  manifest  assent,  the  original  right  of  nations  still 
exists  of  free  navigation  of  the  ocean,  and  a  free  right  of  each  nation 
to  avail  itself  of  its  common  stores  of  wealth  or  subsistence. — {Grotius, 
Booh  2,  ch.  2,  sec.  3  ;    Vattel,  Book  1,  ch.  20,  sees.  282  and  '3.) 

Reference  has  been  made  to  the  Chesapeake  and  Delaware  bays, 
over  which  the  United  States  have  claimed  jurisdiction,  as  cases  militat- 
ing with  this  view  ;  but  those  bays  are  the  natural  outlets  and  enlarge- 
ments of  large  rivers,  and  are  shut  in  by  projecting  headlands,  leaving 
the  entrance  to  the  bays  of  such  narrow  capacity  as  to  admit  of  their 
being  commanded  by  forts,  and  they  are  wholly  different  in  character 
from  such  a  mass  of  the  ocean-water  as  the  Bay  of  Fundy. 

There  is  no  principle  of  the  law  of  nations  that  conntenancos  the 
exclusive  right  of  any  nation  in  such  an  arm  of  the  sea.  Claims,  in 
some  instances,  have  been  made  of  such  rights,  but  they  have  been 
seldom  enforced  or  acceded  to. 

This  is  well  known  to  be  the  prevailing  doctrine  on  the  subject  in 


CONVENTION    WITH   GREAT   BRITAIN. 


178 


America,  and  it  would  have  been  Hurprising  if  the  United  States 
negotiators  had  relinquished,  voluntarily,  the  large  portions  of  tho 
ocean  now  claimed  by  Great  Britain  as  her  exclusive  right,  under 
the  provisions  of  this  treaty,  on  the  ground  that  it  was  sanctioned  by 
the  law  of  nations. 

It  would  have  been  still  more  purprising  if  it  had  ]>een  thus  relin- 
quished, after  its  long  enjoyment  by  the  iniiabitants  of  America  in 
common,  from  the  time  of  their  first  settlement  down  to  the  revolution, 
and  from  that  time  by  the  United  States  and  British  j)rovinces,  from 
the  treaty  of  1783  to  that  of  1818. 

I  see  therefore  no  argIlnlcI!^  in  the  view  which  has  been  suggestec^ 
to  sustain  the  right  of  excliisi      iurisdicti  m  claimed  l»y  Kngland. 

2.  I  come  now  to  the  couh'  'on  of  the  second  point  taken  in  the 

argument  before  us,  whicli  is,  that  by  the  treaty  of  1818  the  United 
States  renounced  the  right  of  taking  fish  within  the  limits  now  in  con- 
troversy. This  depends  on  the  construction  to  be  given  to  the  article 
of  the  treaty  which  I  have  already  cited. 

In  the  construction  of  a  treaty,  admitting  of  controversy  on  account 
of  its  supposed  ambiguity  or  uncertainty,  there  are  various  aids  we 
may  avail  ourselves  of  in  determining  its  interpretation. 

"  It  is  an  established  rule,"  says  Chancellor  Kent,  "in  the  exposi- 
tion of  statutes,"  and  the  same  rule,  I  may  add,  applies  to  treaties, 
"that  the  intention  of  the  lawgiver  is  to  bo  deduced  from  a  view 
of  the  whole  and  of  every  part  of  a  statute,  taken  and  compared 
together,  and  the  real  intention,  when  accurately  ascertained,  will 
always  prevail  over  the  literal  sense  of  the  terms." 

He  further  says,  "  when  the  words  are  not  explicit,  the  intention  is 
to  be  collected  from  the  occasion  and  necessity  of  the  law,  from  the 
mischief  felt,  and  the  remedy  in  view ;  and  the  intention  is  to  be 
taken  or  presumed,  according  to  what  is  consonant  to  reason  and  good 
discretion. — (1  Kent's  Com.  462.) 

Now  there  are  various  circumstances  to  be  considered  in  connexion 
with  the  treaty,  that  will  aid  us  in  coming  to  a  correct  conclusion  as 
to  its  intent  and  meaning. 

These  circumstances  are  the  entire  history  of  the  fisheries ;  the 
views  expressed  by  the  negotiators  of  the  treaty  of  1818,  as  to  the 
object  to  be  effected  by  it ;  the  subsequent  practical  construction  of 
the  treaty  for  many  years ;  the  construction  given  to  a  similar  article 


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174 


ADJUSTMENT  OF  CLAIMS  UNDEB   THE 


in  the  treaty  of  1783 ;  the  evident  meaning  to  he  gained  from  the 
whole  article  taken  together  ;  and  from  the  term  ^'coasts,"  as  used  in 
the  treaty  of  1818,  and  other  treaties  in  reference  to  this  suhject.  All 
these  combine,  as  I  believe,  to  sustain  the  construction  of  the  provisions 
of  the  treaty  as  contended  for  by  the  United  States. 

It  will  not  be  contested  that  the  inhabitants  of  the  territory  now 
included  within  the  United  States,  as  a  matter  of  history,  have  had 
generally  the  common  and  undisturbed  right  of  fishery,  as  now  claimed 
by  them,  from  the  first  settlement  of  the  continent  down  to  the  time 
of  the  revolution,  and  that  it  was  subsequently  enjoyed  in  the  same 
manner,  in  common  by  the  United  States  and  the  British  provinces, 
from  the  treaty  of  1783  down  to  the  treaty  of  1818. 

This  right  was  based  originally  on  what  Dr.  Paley  well  regards,  in 
his  discussion  of  this  subject,  ''as  a  general  right  of  mankind;"  and 
the  long  and  undisturbed  enjoyment  of  it  furnishes  just  ground  for  the 
belief  that  the  United  States  negotiators  would  be  slow  in  relinquishing 
it.  They  certainly  would  not  be  likely  to  relinquish  more  than  was 
asked  for,  or  what  the  United  States  negotiators  a  few  years  before 
contended  was  held  by  the  same  tenure  as  the  national  independence 
of  the  United  States,  and  by  a  perpetual  right. 

In  the  negotiation  of  the  treaty  of  peac-  of  1814  no  provision  was 
inserted  as  to  the  fisheries.  Messrs.  Adams  and  Gallatin  notified  the 
British  commissioners  that  '*the  United  States  claimed  to  hold  the 
right  of  the  fisheries  by  the  same  tenure  as  she  held  her  independence ; 
that  it  was  a  perpetual  right  appurtenant  to  her  as  a  nation,  and  that 
no  new  stipulation  was  necessary  to  secure  it. " 

The  negotiators  on  the  part  of  the  British  government  did  not  answer 
this  declaration,  or  contest  the  validity  of  the  ground  taken. 

Afterwards,  in  1815,  the  consultations  had  between  Lord  Bathnrst 
^nd  Mr.  Adams,  the  then  Secretary  of  State,  relative  to  the  fisheries, 
show  on  what  grounds  negotiations  were  proposed,  which  were  per- 
fected by  the  treaty  of  1818;  and  that  the  renunciation  desired,  from 
the  treaty  of  1783,  consisted  of  the  shore  or  boat  fisheries,  which  are 
prosecuted  within  a  marine  league  of  the  shore,  and  of  no  others. 

At  the  first  interview  of  the  commissioners,  liord  Bathurst  used 
this  distinct  and  emphatic  language:  *'As,  on  the  one  hand,  Great 
Britain  cannot  permit  the  vessels  of  the  United  States  to  fish  within 
the  creeks  and  close  upon  the  shores  of  the  British  territories,  so,  on 


CONVENTION   WITH    GREAT    BRITAIN. 


176 


the  other  hand^  it  is  by  no  means  her  intention  to  interrupt  them  in 
fishing  anywhere  in  the  open  sea,  or  without  the  territorial  jurisdistion, 
a  marine  league  from  the  shore."         '  -•  >  .    ,-  . 

Again  ;  he  said,  on  a  subsequent  occasion  :  ''  It  is  not  of  fair  com- 
petition that  his  Majesty's  government  has  reason  to  complain,  but  of 
the  preoccupation  of  British  harbors  and  creeks. ' ' — (Sabine's  lieport  on 
Fisheries,  p.  282.)     ,  --^ 

It  is  clear  that  it  was  only  within  these  narrow  limits  the  British 
government  designed  to  restrict  the  fisheries  by  the  citizens  of  the 
United  States. 

The  views  of  Messrs.  Gallatin  and  Bush,  the  American  negotiators 
of  the  treaty  of  1818,  appear  from  their  communication  made  to  the 
Secretary  of  State,  Mr.  Adams,  immediately  after  the  signature  of  the 
treaty. 

In  this  communication  they  say:  **  The  renunciation  in  the  treaty 
expressly  states  that  it  is  to  extend  only  to  the  distance  of  three  miles 
from  the  coast;  and  this  point  was  the  more  important,  as,  with  the 
exception  of  the  fisheries  in  open  boats  in  certain  harbors,  it  appeared 
that  the  fishing-ground  on  the  lohole  coast  of  Nova  Scotia  was  more 
than  three  miles  from  the  shore."  * 

It  thus  appears  that  the  negotiators  of  both  governments  concurred, 
at  the  time  of  making  the  treaty,  in  giving  to  it  the  intent  and  mean- 
ing now  contended  for  by  the  United  States. 

It  further  appears  that  such  was  the  intent  and  effect  of  the  treaty 
of  1818,  from  the  fact  that  the  construction  practically  given  to  it  for 
more  than  twenty  years,  and  indeed  down  to  the  year  1842,  conformed 
to  the  views  of  the  negotiators  as  thus  expressed. — (See  Sabine's  JReporty 
p.  294.) 

There  are  certain  circumstances  also  appearing  in  the  case,  which 
show  the  evident  reluctance  of  the  British  government  to  assert  the 
exclusive  pretensions  ultimately  put  forth  by  them,  and  that  they  had 
been  goaded  to  it,  against  their  better  sense,  as  to  the  construction  of 
the  treaty,  by  jealousies  and  laws  of  the  colonists  of  a  very  unusual 
character,  and  which  Great  Britain  was  slow  to  sanction.  And  when 
she  ultimately  concluded  to  assert  this  claim,  she  tendered  with  it 
propositions  for  new  negotiations,  by  which  all  matters  connected  with 
the  colonies  should  be  amicably  a(^u8ted. 


^,.!      '       ■-)  ■ 


.,%•.■'♦•»/ 


176 


ADJUSTMENT  OF  CLAIMS  UNDB&  THE 


I  shall  now  consider  the  construction  given  to  similar  words  of  the 
treaty  of  1783. 

It  will  not  be  denied  that  the  words  used  in  the  treaty  of  1783  and 
the  treaty  of  1818,  where  they  are  identical,  and  where  express  refer- 
ence is  made  to  the  provisions  of  the  former  treaty,  mean  the  same 
thing.  When  the  United  States  are  said,  in  the  treaty  of  1818,  to 
renounce  the  liberty  heretofore  enjoyed  and  claimed,  it  means  the  liberty 
heretofore  enjoyed  under  the  treaty  of  1783 ;  and  the  liberty  then  enjoyed 
was  to  take  fish  "on  certian  bays  and  creeks,"  without  any  limitations 
as  to  distance  from  them.  ,««.*-    .i  ■  «  ,.i.MiH!.i. 

Now,  what  were  those  bays  and  creeks  on  which — that  is,  ahng  the  line 
of  which,  drawn  from  headland  to  hea^and,  the  citizens  of  the  United 
States  were  allowed  to  take  fish  under  the  treaty  of  1783?  It  cannot 
be  pretended  that  the  bays  and  creeks  there  intended  were  any  other 
than  small  indentations  from  the  great  arms  of  the  sea.  They  certainly 
did  not  include  the  Bay  of  Fundy  and  other  large  waters.  Because, 
if  fishing  was  allowed  merely  on  that  bay,  as  is  now  contended — that 
is,  on  and  along  the  line  of  the  bay  from  headland  to  headland — then 
all  fishing  within  the  Bay  of  Fundy  would  be  excluded.  But  it  is  a 
well-known  fact  that  the  suggestion  never  was  made,  or  a  surmise 
raised,  that  the  expressions  used  in  the  treaty  of  1783  permitted  the 
fishermen  of  the  United  States  to  go  merely  to  the  line  of  the  Bay  of 
Fundy,  and  restricted  them  from  fishing  within  it. 

A  practice,  therefore,  for  thirty-five  years  under  this  treaty  of  1783 
had  determined  tvhat  clnsses  of  bays  and  creeks  were  meant  by  the  ex- 
pressions there  used.  -.,.,-,:    ,.  ;^  li     ^JtJJ.    ,**iai:l** 

The  treaty  of  1818  renounced  the  liberty  heretofore  enjoyed  of  fish- 
ing on  these  identical  bays  and  creeks — that  is,  immediately  on  the 
line  of  them — and  also  further  renounced  the  liberty  of  fishing  within 
a  8][)ace  of  three  miles  of  them.  But  the  bays  and  creeks  here  referred 
to  were  the  same  as  those  referred  to  in  the  treaty  of  1783,  and  neither 
of  them  ever  included  tlie  Bay  of  Fundy.  *-£*^     v  -^^ 

The  express  connexion  between  these  two  treaties  is  apparent  from 
the  face  of  them.  Reference  is  made  to  the  treaty  of  1783  in  a  man- 
ner that  cannot  be  mistaken ;  the  subject  matter  is  the  same,  and  the 
language,  as  to  the  point  in  question,  identical. 

I  contend,  therefore,  that  the  governments,  in  adopting  the  language 
of  the  treaty  of  1783,  in  the  treaty  of  1818,  received  the  words  with 


CONVENTION  WITH   GREAT  BRITAIN. 


177 


Is  of  the 

1783  and 
ess  refer- 
the  same 
1818, to 
le  liberty 
n  enjoyed 
mitations 

%g  the  line 
lie  United 
It  cannot 
any  other 
certainly 
Because, 
ded — that 
ind — then 
But  it  is  a 
a  surmise 
litted  the 
he  Bay  of 

;y  of  1783 
y  the  ex- 

jd  of  fish- 
ily on  the 
Ing  tvithin 
re  referred 
id  neither 

Irent  from 
In  a  man- 
I,  and  the 

I  language 
)rd8  Mfith 


the  construction  and  application  given  to  them  up  to  that  time,  and 
that  neither  party  can  now  deny  such  construction  and  application, 
but  is  irrevocably  bound  by  it. 

There  are  other  portions  of  the  article  in  question  that  aid  in  giving 
a  construction  to  the  clause  under  consideration,  and  that  irresistibly 
sustain  the  view  I  have  adopted. 

Thus  it  is  provided,  in  another  portion  of  the  same  article  in  refer- 
ence to  these  same  creeks  and  hays,  that  the  fishermen  of  the  United 
States  shall  be  admitted  to  enter  "  sucii  hays,"  for  the  pmyose  of  shelter, 
and  to  obtain  loood  and  ivater;  thus  clearly  implying  that  such  bays 
are  small  indentations  extending  into  the  land  to  which  fishing  craft 
would  naturally  resort  for  shelter,  and  to  obtain  tvood  and  water,  and 
not  large  open  seas  like  the  Bay  of  Fundy. 

There  are  numerous  bays  of  this  character,  along  the  coast,  within 
tlie  Bay  of  Fundy ;  such  as  the  Bay  of  Passamaquoddy,  Annapolis, 
St.  Mary's,  Chignecto,  Mines  Bay,  and  other  well  known  bays  extend- 
ing up  into  the  land. 

There  is  a  further  argument  to  sustain  the  American  construction 
given  to  the  treaty,  derived  from  the  meaning  affixed  to  the  term 
'^coasts,"  as  applied  by  the  usage  of  the  country,  and  which  was 
adopted  and  embodied  in  the  various  treaties  between  France  and 
England  from  a  very  early  period,  and  has  been  continued  down  to 
tlie  present  time. 

I  have  not  seen  this  argument  adverted  to  ;  but  it  seems  to  me  im- 
portant, and  indeed  of  itself  quite  conclusive  as  to  the  matter  in  ques- 
tion, and  I  shall  now  consider  it. 

The  term  ^'coasts,"  in  all  these  prior  treaties,  is  applied  to  all  the 
borders  and  shores  of  the  eastern  waters,  not  only  alono;  the  mainland, 
but  in  and  about  the  Gulf  of  St.  Lawrence,  and  arouml  all  the  larger 
and  smaller  islands  where  fisheries  were  carried  on. 

Tiiese  coasts  are  thus  defined  and  specified  in  the  treaty  of  Utrecht 
between  Great  Britain  and  France  in  1713,  of  Paris  in  17r>3,and  other 
treaties  to  the  present  time.  In  the  treaty  of  Utrecht  betwen  France 
and  England,  the  liberty  of  taking  and  drying  fish  is  allowed  "on 
the  coasts  oi'  Newfoundland  ;"  provision  is  also  made  as  to  the  fisheries 
on  the  coasts,  in  the  mouth,  and  in  the  Gulf  (f  St.  Lawrence. 

Reference  is  made  to  these  'U^oasts"  in  the  same  manner  in  the 
treaty  of  Paris,  which  took  place  after  the  conquest  of  Canada.     The 

12 


111 


liM: 


178 


ADJUSTMENT  OF   CLAIMS  UNDER  THE 


French  are  permitted  by  this  treaty  to  fish  in  the  Gulf  of  St.  Lawrence 
at  a  given  distance  from  all  ^'the  coasts"  belonging  to  Great  Britain, 
as  well  those  "of  the  contiuent"  as  those  of  the  is?anc?s  situated  in 
the  Gulf  of  St.  Lawrence."  The  fishery  also  "on  the  coasts"  of  the 
comparatively  small  island  "  of  Cape  Breton  out  of  said  Gulf"  is  regu- 
lated and  provided  for;  and  further  it  is  provided  "that  the  fishery 
on  the  coasts  of  Nova  Scotia,  or  Acadia,  and  everywhere  else,  out  of 
the  said  Gulf,  shall  remain  on  the  footing  of  former  treaties." 

Now  I  regard  it  as  utterly  impossible  for  any  one  looking  at  these 
treaties,  with  the  map  of  the  islands  and  waters  in  the  Gulf  or  Bay  of 
•St.  Lawrence,  and  in  and  around  Nova  Scotia,  referred  to  in  these 
treaties,  to  doubt  for  a  moment  that  the  term  "  coasts"  was  designed 
to  apply,  and  did,  in  terms,  apply  to  the  whole  contour  of  the  main- 
land and  the  islands  referred  to,  including  the  entire  circuit  of  Nova 
Scotia  on  the  Bay  of  Fundy. 

These  expressions  are  continued  in  the  same  manner  in  the  treaty  of 
1783.  The  United  States  are  there  allowed  to  take  fish  in  the  Gulf  of 
St.  Lawrence,  "on  the  coast  of  Newfoundland,"  and  also  "on  the 
coasts,  bays,  and  creeks  of  all  other  of  his  Britannic  Majesty's  dominions 
in  America." 

Again,  in  the  preamble  to  the  treaty  of  1818,  which  we  are  now  con- 
sidering, it  is  said  to  have  been  caused  by  differences  as  to  the  liberty 
claimed  to  take  fish  on  certain  coasts,  bays,  harbors,  and  creeks  of  his 
Britannic  Majesty's  dominions  in  America,  and  by  the  treaty  provision 
is  made  as  to  the  fisheries  on  the  coasts  of  Newfoundland,  and  on  "the 
coasts,  bays,  harbors,  and  creeks  from  Mount  Joly,  on  the  southern 
coast  of  Labrador,  to  and  through  the  straits  of  Belle  Isle,  and  thence 
northwardly  indefinitely  along  the  coast;"  and  then  follows  the  renun- 
ciation from  the  right  before  enjoyed  by  the  United  States  "to  take,  dry 
or  cure  fish  on  or  within  three  marine  miles  of  any  of  the  coasts,  bays, 
creeks,  or  harbors  of  his  Majesty's  dominions  in  America." 

It  seems  to  me  undeniable  that  the  term  coasts  in  all  these  treaties 
was  well  defined  and  known.  The  outlet  of  the  St.  Lawrence  is  equally 
well  known  by  the  terra  bay  or  gulf.  The  shores  on  that  bay  or  gulf, 
and  on  the  islands  within  it,  are  uniformly  spoken  of  as  "coasts;"  and 
the  same  mode  of  designating  the  shores  along  this  entire  country  is 
used  in  all  these  treaties  in  reference  to  the  various  waters  where  fishe- 
ries were  carried  on. 


ifi 


CONVENTION   WITH   GREAT  BRITAIN. 


179 


a  now  con- 


' '  The  coasts ' '  uamed  in  these  treaties  were  not  only  the  coasts  of 
the  Bay  or  Gulf  of  St.  Lawrence,  and  of  the  island  of  Cape  Breton, 
but  extended  from  the  head  of  the  Bay  of  Fundy  along  the  bay  entirely 
around  Nova  Scotia  to  the  Gulf  or  Bay  of  St.  Lawrence. 

There  never  had  been  any  misunderstanding  as  to  the  application  of 
this  term,  or  denial  of  the  right  to  fish  on  these  coasts,  as  I  have 
named  them,  under  all  these  treaties  down  to  1818.  The  Lerm  coasts, 
as  applied  to  Nova  Scotia  during  this  long  period,  was  as  well  known 
and  understood  as  the  term  "  coasts"  applied  to  England  or  Ireland  ; 
and  it  included  the  coasts  on  the  Bay  of  Fundy  as  fully  and  certainly 
as  the  term  coasts  of  England  applies  to  the  coasts  of  the  English 
channel.  It  was  a  fixed  locality,  known  and  established,  and  the  right 
of  taking  fish  had  always  been  "  enjoyed  there." 

When,  therefore,  the  treaty  of  1818  '4-enounced  the  liberty,  hereto- 
fore enjoyed,  of  taking  fish  within  three  marine  miles  of  any  of  the 
COASTS,  bays,  creeks,  etc.,  of  his  Britannic  Majesty's  dominions,"  the 
renunciation  was,  for  this  distance  from  a  fixed  locality,  as  fully  settled 
and  established  as  language,  accompanied  by  a  long  and  uninterrupted 
usage,  could  make  it. 

"  The  coasts  "  named  are  those  of  1783,  and  of  prior  treaties,  and 
the  renunciation  of  three  miles  was  to  be  reckoned  from  these  coasts. 
The  Bay  of  Fundy  was  therefore  not  excluded  from  the  fishing  grounds 
of  the  United  States. 

The  annexed  sketch  of  the  Gulf  or  Bay  of  St.  Lawrence,  with  the 
adjoining  waters  and  coasts,  will  show  how  the  term  coasts  was  prac- 
tically applied  under  all  the  treaties  referred  to  prior  to  1818. 

I  am  not  aware  of  any  reply  to  the  points  here  taken  that  I  think 
can  at  all  invalidate  them. 

From  the  papers  filed  in  the  case,  it  appears  that  in  1841 ,  the  province 
of  Nova  Scotia  caused  a  case  stated  to  be  drawn  up  and  forwarded  to 
England,  with  certain  questions  to  be  proposed  to  the  law  officers  of 
the  crown. 

One  inquiry  was,  whether  the  fishermen  of  the  United  States  have 
any  authority  to  enter  any  of  the  bays  of  that  province  to  take  fish. 
These  officers,  Messrs.  Dodson  and  Wilde,  reply  that  no  right  exists 
to  enter  the  bays  of  Nova  Scotia  to  take  fish,  "  as  they  are  of  opinion 
the  term  headland  is  used  in  the  treaty  to  express  the  part  of  the  land 
excluding  the  interior  of  the  bays  and  inlets  of  the  coasts." 


It 


t 


180 


ADJUSTMENT   OF   CLAIMS   UNDER  THE 


CONVENTION  WITH   GREAT   BRITAIN. 


181 


to 

* 

i 


< 
111 
o 

o 


-^ 


Now  it  so  happens  that  no  sucli  term  is  used  in  the  treaty,  and 
their  decision,  based  on  it,  falls  to  the  ground. 

They  were  also  specifically  asked  to  define  what  is  to  be  considered 
a  headland.  This  they  did  not  attempt  to  do.  The  headlands  of  the 
Bay  of  Fundy  have  never  been  defined  or  located,  and,  from  the  con- 
tour of  tho  bay,  no  such  headlands  properly  exist. 

These  officers  held  that  the  American  fishierman,  for  the  reason 
named,  could  not  enter  the  bays  and  harbors  of  Nova  Scotia.  But 
the  Bay  of  Fundy  is  not  a  bay  or  harbor  of  the  province  of  Nova 
Scotia,  and  was  never  included  in  its  limits.  The  Bay  of  Fundy  is 
bounded  on  one  side  by  Nova  Scotia,  and  on  the  other  by  New  Bruns- 
wick, and  it  is  not  clear  that  either  the  question  proposed,  or  answer 
given,  was  designed  to  include  this  large  arm  of  the  sea. 

It  is  also  said,  that  Mr.  Webster  has  conceded  the  point  in  issue  in 
a  notice  given  to  American  fishermen.  The  claims,  now  asserted 
were  not  put  forth  till  many  years  after  the  treaty  of  1818;  and  it 
was  not  until  1852  the  British  government  gave  notice  that  seizures 
would  be  made  of  fishermen  taking  fish  in  violation  of  the  construc- 
tion of  the  treaty  of  1818,  as  then  claimed  by  them,  when  Mr.  Web- 
ster, to  avoid  the  collisions  that  might  arise,  issued  a  notice  setting 
forth  the  claims  put  forth  by  England. 

In  one  part  of  his  notice  he  says:  "It  was  an  oversight  to  make 
so  large  a  concession  to  England,"  but  closes  by  saying:  "Not 
agreeing  that  the  construction  put  upon  the  treaty  by  the  English 
government  is  conformable  to  the  intentions  of  the  contracting  par- 
ties, this  information  is  given  that  those  concerred  in  the  fisheries 
may  understand  how  the  concern  stands  at  present,  and  be  upon  their 
guard." 

Mr.  Webster  subsequently  denied  relinquishing,  in  Any  manner,  by 
this  notice,  the  rights  of  the  United  States,  as  claimed  under  this 
treaty. 

Detached  expressions  quoted  from  it,  to  sustain  a  different  opinion, 
can  hardly  be  regarded,  under  such  circumstances,  as  an  authority. 

I  have  seen  no  other  argument  or  suggestions  tending,  as  I  think, 
to  sustain  the  grounds  taken  by  the  British  government. 

On  the  other  hand,  I  have  adverted,  briefly,  as  I  proposed,  to  the 
history  of  the  fisheries ;  the  views  expressed  by  the  negotiators  of  the 
treaty  of  1818,  as  to  the  object  to  be  effected  by  it ;  the  subsequent 


182 


ADJUSTMENT  OF  CLAIMS  UNDER   THE 


practical  construction  of  it  for  many  years  ;  the  construction  given  to 
a  similar  article  in  the  treaty  of  1783 ;  the  evident  meaning  to  be 
gained  from  the  entire  article  of  the  treaty  taken  together.;  and  from 
the  term  ''coasts"  as  used  in  the  treaty  of  1818,  and  other  treaties 
in  reference  to  tlnn  subject ;  and  tlie  whole  combine,  as  I  believe,  to 
sustain  the  construction  contended  for  by  the  United  States. 

I  am  therefore  of  opinion,  the  owners  of  the  Washington  should 
receive  compensation  for  the  unlawful  seizure  of  that  vessel  by  the 
British  government,  when  fishing  more  than  three  miles  from  the 
shore  or  coast  of  the  Bay  of  Fundy. 


GOMyBMTION   WITH   GREAT  BBITAIN. 


183 


Hornby,  British  Commissioner : 

An  opinion  was  delivered  by  Hornby  conflicting  with  the  views  and 
conclusion  of  the  United  States  commissioner,  and  sustaining  the 
position  taken  by  his  government,  on  the  ground  that  Great  Britain, 
by  virtue  of  her  ownership  of  both  shores  of  the  Bay  of  Fuudy,  had 
exclusive  jurisdiction  over  the  waters  of  the  bay,  by  virtue  of  the  law 
of  nations,  applicable  to  such  sheets  of  water,  and  cited  various  claims 
that  had  been  put  forth  to  a  similar  jurisdiction. 

He  also  held  that  the  provision  in  the  treaty  by  which  the  United 
States  ''  renounced  the  liberty  previously  enjoyed  to  take,  dry,  or  cure 
fish  on,  or  within  three  marine  miles  of  any  of  the  coasts,  bays,  creeks, 
or  harbors  of  his  Britannic  Majesty's  dominions  in  North  America," 
excluded  by  its  terms,  andby  a  just  construction  of  the  treaty,  fisheries 
of  the  United  States  citizens  in  the  Bay  of  Fundy. 


NoTB. — The  opinion  of  the  British  commiisioner  in  this,  and  some  other  cases,  was  to  hav 
been  drawn  up  at  length,  and  furnished,  to  be  placed  on  file.  It  is  to  be  regretted  that  these 
opinions  have  not  been  received,  and  that,  after  this  length  of  time,  they  probably  will  notbe. 


184 


ADJUSTMENT  OF  CLAIMS   UNDER   THE 


Bates,  Unii)iro: 

The  schooner  Washington  was  Hcized  hy  th<!  revcnuo  Hchooiicr  Julia, 
Captain  Daihy,  while  fisliing  in  the  Bay  of  Fiuuly,  ten  miles  from 
the  shore,  on  the  10th  of  May,  18413,  on  the  charge  of  violating  tho 
treaty  of  181H.  She  was  carried  to  Yarmontli,  Nova  Hcotia,  ond  there 
decreed  to  be  forfeited  to  the  crown  hy  tho  judge  of  the  vice  admiralty 
court,  and  with  her  stores  ordered  to  be  sold.  Tho  owners  of  tho 
Washington  claim  for  the  value  of  tho  vessel  and  api>urtenances,  out- 
fits and  damages,  $2,483,  and  for  cloven  3'ears  interest,  $1 ,038,  amount- 
ing together  to  $4,121.  By  tho  recent  reciprocity  treaty,  happily 
concluded  between  tho  United  States  and  Great  Britain,  there  seems 
no  chance  for  any  future  disputes  in  regard  to  the  fisheries.  It  is  to 
bo  regretted,  that  in  thot  treaty,  provision  was  not  made  for  settling  a 
few  small  claims  of  no  importance  in  a  pecuniary  sense,  which  were 
then  existing,  but  as  they  have  not  been  settled,  they  are  now  brought 
before  this  commission. 

The  Washington  fishing  schooner  was  seized,  as  before  stated,  in  the 
Bay  of  Fundy,  ten  miles  from  the  shore,  off  Annapolis,  Nova  Scotia. 

It  will  be  seen  by  the  treaty  of  1783,  between  Great  Britain  and  the 
United  States,  that  the  citizens  of  the  latter,  in  common  with  the  subjects 
of  tho  former,  enjoyed  the  right  to  ^ai'e  and  c?»'e  fish  on  the  shores  of  all 
parts  of  her  Majesty's  dominions  in  America,  used  by  British  fisher- 
men ;  but  not  to  dry  fish  on  the  island  of  Newfoundland,  which  latter 
privilege  was  confined  to  the  shores  of  Nova  Scotia  in  the  following 
words  :  "And  American  fishermen  shall  have  liberty  to  dry  and  cure 
fish  on  any  of  the  unsettled  bays,  harbors,  and  creeks  of  Nova  Scotia, 
but  as  soon  as  said  shores  shall  become  settled,  it  shall  not  bo  lawful 
to  dry  or  cure  fish  at  such  settlement,  without  a  previous  agreement 
for  that  purpose  with  the  inhabitants,  proprietors,  or  possessors  of  the 
ground." 

The  treaty  of  1818  contains  the  following  stipulations  in  relation 
to  the  fishery :  * '  Whereas,  differences  have  arisen  respecting  the  liberty 
claimed  by  the  United  States  to  take,  dry,  and  cure  Jish  on  certain 
coasts,  hays,  harbors,  and  creeks  of  his  Britannic  Majesty's  dominions 
in  America,  it  is  agreed  that  the  inhabitants  of  the  United  States 
shall  have,  in  common  with  the  subjects  of  his  Britannic  Majesty,  the 
liberty  to  fish  on  certan  portions  of  the  southern,  western,  and  northern 


CONVENTION    WITH   GREAT   BRITAIN. 


185 


coast  of  Nowfoiindlaml ;  and,  also,  on  tho  coastH,  Imy.H,  linrliorH,  and 
crcokH,  from  Mount  Joly,  on  tho  southern  toast  of  Labrador,  to  and 
through  tho  straits  of  Bello  Isle  ;  and  thence  northwardly  indefinitely 
along  tho  coast,  and  that  Amoriean  Hshermen  shall  have  liberty  to  dry 
and  cure  fish  in  any  of  tho  unsettled  bays,  harbors,  atid  creeks  of  said 
described  coasts,  until  tho  same  become  settled,  and  the  I'nited  States 
renounco  the  liberty  heretofore  enjoyed  or  claimed  by  the  inhabitants 
thereof,  to  take,  dry,  or  cure  fish,  on  or  unthin  thrvr  marine  mlhs  of 
any  of  the  coasts,  bays,  creeks,  or  harbors  of  his  Britannic  Majesty's 
dominions  in  America,  not  included  in  the  above  mentioned  limits : 
provided,  however,  that  tho  American  nshormen  shall  bo  admitted  to 
enter  such  bays  or  harbors,  for  the  purpose  of  shelter,  and  of  repairing 
damages  therein,  of  purchasing  wood,  and  of  obtaining  water,  and  for 
no  other  purpose  whatever.  But  they  shall  be  under  such  restrictions 
as  may  be  necessary  to  prevent  their  taking,  drying,  or  curing  fish 
therein,  or  in  any  other  manner  whatever  abusing  the  privileges 
hereby  reserved  to  them." 

The  question  turns,  so  far  as  relates  to  the  treaty  stipulations  on  tho 
meaning  given  to  the  word  "bays"  in  tho  treaty  of  1783.  By  that 
treaty  the  Americans  had  no  right  to  dry  and  cure  fish  on  the  shores 
and  bays  of  Newfoundland,  but  they  had  that  right  on  the  coasts,  hays, 
harfnyrs,  and  creeks  of  Nova  Scotia  ;  and  as  they  must  land  to  cure  fish 
on  the  shores,  bays,  and  creeks,  they  were  evidently  admitted  to  the 
shores  of  the  bays,  do.  By  tho  treaty  of  1818,  the  same  right  is  granted 
to  cure  fish  on  the  coasts,  bays,  &c. ,  of  Newfoundland,  but  the  Americans 
relinquished  that  right,  and  the  right  to  fish  ivithin  three  miles  of  the 
coasts,  bays,  dc,  of  Nova  Scotia.  Taking  it  for  granted  that  the 
framers  of  the  treaty  intended  that  tho  word  "bay  or  bays"  should 
have  the  same  meaning  in  all  cases,  and  no  mention  being  made  of 
headlands,  there  appears  no  doubt  that  the  Washington,  in  fishing  ten 
miles  from  the  shore,  violated  no  stipulations  of  the  treaty. 

It  was  urged  on  behalf  of  the  British  government,  that  by  coasts, 
bays,  &c.,  is  understood  an  imaginary  line,  drawn  along  the  coast 
from  headland  to  headland,  and  that  the  jurisdiction  of  her  Majesty 
extends  three  marine  miles  outside  of  this  line ;  thus  closing  all  the 
bays  on  the  coast  or  shore,  and  that  great  body  of  water  called  the  Bay 
of  Fundy  against  Americans  and  others,  making  the  latter  a  British 
bay.    This  doctrine  of  headlands  is  new,  and  has  received  a  proper 


^  J 


^'1 


186 


ADJUSTMENT   OF  CLAIMS  UNDER   THE 


limit  in  the  convention  between  France  and  Great  Britain  of  2d  August, 
1839,  in  which  "  it  is  agreed  that  the  distance  of  three  miles  fixed  as 
the  general  limit  for  the  exclusive  right  of  fishery  upon  the  coasts  of 
the  two  countries  shall,  with  respect  to  bays,  the  mouths  of  which  do 
not  exceed  ten  miles  in  width,  be  neasured  from  a  straight  line  drawn 
from  headland  to  headland." 

The  Bay  of  Fundy  is  from  65  to  75  miles  wide,  and  130  to  140  miles 
long,  it  has  several  bays  on  its  coasts  ;  thus  the  word  bay,  as  applied 
to  this  great  body  of  water,  has  tlie  same  meaning  as  that  applied  to 
the  Bay  of  Biscay,  the  Bay  of  Bengal,  over  which  no  nation  can  have 
the  right  to  assume  the  sovereignty.  One  of  the  headlands  of  the  Bay 
of  Fundy  is  in  the  United  States,  and  ships  bound  to  Passamaquoddy 
must  sail  through  a  large  space  of  it.  The  island  of  Grand  Menan 
(British)  and  Little  Menan  (American)  are  situated  nearly  on  a  line  from 
headland  to  lieadl  and .  These  islands,  as  represented  in  all  Geographies, 
are  situate  in  the  Atlantic  ocean.  The  conclusion'  is,  therefore,  in 
my  mind  irresistible,  that  the  Bay  of  Fundy  is  not  a  British  bay,  nor 
a  bay  within  the  meaning  of  the  word,  as  used  in  the  treaties  of  1*783 
and  1818.  . 

The  owners  of  the  Washington,  or  their  legal  representatives,  are 
therefore  entitled  to  compensation,  and  are  hereby  awarded  not  the 
amount  of  their  claim,  which  is  excessive,  but  the  sum  of  three  thousand 
dollars,  due  on  the  15th  January,  1865. 


CONVENTION  WITH   GREAT  BRITAIN. 


187 


THE  BRIG  ENTERPRIZE. 


Every  country  is  entitled  to  the  free  and  absolute  right  to  navigate  the  ocean,  as  the  com- 
mon highway  of  nations;  and,  while  in  the  enjoyment  of  this  right,  retains  over  its  vessels 
the  exclusive  jurisdiction. 

A  vessel,  compelled  by  stress  of  weather,  or  other  unavoidable  necessity,  has  a  right  to 
seek  temporary  shelter  in  any  harbor,  as  incident  to  her  right  to  navigate  the  ocean,  until  the 
danger  is  past,  and  she  can  proceed  in  safety. 

When  a  vessel,  engaged  in  a  lawful  voyage  by  the  law  of  nations,  is  compelled,  by  stress 
of  weather,  or  other  inevitable  cause,  to  enter  a  harbor  of  a  friendly  nation  for  temporary 
shelter,  the  enjoyment  of  such  shelter,  being  incident  to  the  right  to  navigate  the  ocean,  car- 
ries with  it,  over  the  vessel  and  personal  relations  of  those  on  board,  the  rights  of  the  ocean, 
so  far  as  to  extend  over  it,  for  the  time  being,  the  protection  of  the  laws  of  its  country. 

The  act  of  3  and  4  William  IV.,  ch,  73,  abolishing  slavery  in  Great  Britain  and  her 
dominions,  could  not  overrule  the  rights  of  nations,  as  sustained  by  these  propositions. 


The  brig  Enterprize  sailed  from  A.lexandria,  in  the  District  of  Co- 
lumbia, on  the  22d  of  January,  1835,  for  Charleston,  South  Carolina. 

She  had  on  board  seventy-three  slaves,  besides  the  owners  of  the  ves- 
sel. She  encountered  severe  weather  on  her  passage,  was  driven  from 
her  course,  and  was  ultimately  compelled,  by  stress  of  weather,  and  her 
leaky  condition,  after  beingthree  weeks  at  sea,  to  putinto  Port  Hamilton, 
in  Bermuda,  to  refit,  in  order  to  enable  her  to  proceed  on  her  voyage. 

While  in  port,  the  vessel  was  entered  by  person*  claiming  authority 
under  the  government,  and  the  slaves  were  liberated. 

Claim  was  early  made  for  indemnity  for  such  liberation,  under  the 
circumstances  in  which  the  vessel  entered  into  port ;  and  after  much 
correspondence  between  the  governments  in  reference  to  it,  the  claim 
was  still  pending  at  the  time  the  convention  was  entered  into,  and 
it  was  then  presented  for  adjustment  by  the  commission. 

Hannen,  agent  and  counsel  for  Great  Britain,  resisted  the  claim  on 
the  several  grounds  following,  viz : 

1.  That  laws  have  no  force  in  themselves  beyond  the  territory  of 
the  country  by  which  they  are  made. 


^i 


fif 


l\ 


188 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


2.  That,  while  by  the  comity  of  nations,  the  laws  of  one  country 
are,  in  some  cases,  allowed  by  another  to  have  operation  within  its 
territory  when  it  is  so  permitted,  the  foreign  law  has  its  authority  in 
the  other  country  from  the  sanction  given  to  it  there,  and  not  from  its 
original  institution. 

3.  Tliat  every  nation  is  the  sole  judge  of  the  extent  and  the  occasions 
on  which  it  will  permit  such  operation,  and  is  not  bound  to  give  such 
permission  when  the  foreign  law  is  contrary  to  its  interests  or  its 
moral  sentiments. 

4.  That  England  does  not  admit  within  its  territory  the  applica- 
tion of  any  foreign  law  establishing  slavery,  having  abolished  the 
•s/a<?(s  of  slavery  throughout  her  dominions.  ,j.     > 

5.  He  contended  that  the  condition  of  apprenticeship,  as  permitted 
to  remain  in  the  West  India  islands,  formed  no  exception  to  the  aboli- 
tion of  slavery  throughout  the  British  dominions,  as  it  was  a  system 
entirely  different  from  slavery,  and  would  not  justify  sustaining  any 
other  description  of  slavery. 

6.  That  the  liberty  of  any  individual  in  British  territory  could  not 
be  restrained  without  some  law  to  justify  such  restraint,  and  that 
neither  the  apprentice  law  nor  any  other  law  could  be  appealed  to  to 
justify  the  detention  of  these  negroes. 

7.  That  slavery  was  not  a  relation  which  the  British  government, 
by  the  comity  of  nations,  was  bound  to  respect. 


I 


CONVENTION   WITH   GREAT  BRITAIN. 


189 


Thomas,  agent  and  counsel  for  tlie  United  States : 

The  transaction  out  of  which  this  claim  arose  took  place  in  the 
year  1835.  On  the  22d  of  January  in  that  year,  the  brig  Enterprize 
sailed  from  Alexandria,  in  the  District  of  Coluhibia,  bound  for  Charles- 
ton, South  Carolina,  having  a  number  of  negro  slaves  on  board.  Her 
I)apers  were  regular,  and  the  voyage  in  all  respects  lawful.  She  en- 
countered tempestuous  weather  and  was  driven  from  her  couisc,  and 
after  having  been  three  weeks  at  sea,  she  was  unavoidably  compelled, 
l)y  stress  of  weather,  to  enter  into  Port  Hamilton,  Bermuda  Island, 
where  the  negroes  were  forcibly  seized  on  board  and  liberated  by  the 
local  authorities  of  Great  Britain. 

It  will  be  remembered  that  the  slaves  on  board  the  Comet,  in  1830, 
and  the  Encomium,  in  1834,  were  liberated  by  the  British  authorities 
under  circumstances  entirely  similar  in  principle.  The  owners  of  the 
negroes  in  all  these  cases,  after  applying,  without  success,  to  the  au- 
thorities in  Bermuda  for  their  surrender,  brought  the  matter  before 
tlie  United  States  government  for  the  redress  of  the  injury,  and  many 
years  were  consumed  in  negotiation  ;  the  British  government,  how- 
ever, finally  agreed  to  compensate  the  owners  of  the  Comet  and  En- 
comium, on  the  ground  that  these  cases  occurred  while  slavery  existed 
by  British  law,  but  refused  compensation  in  the  case  of  the  Enterprize, 
for  the  alleged  reason  that  at  the  time  this  vessel  arrived  at  Bermuda, 
slavery  had,  by  the  emancipation  act  of  1833,  been  abolished  through- 
out the  British  empire. 

These  are  the  important  facts  in  this  case,  and  I  propose  to  show 
first  that  the  principle  which  grants  compensation  in  the  cases  of  the 
Comet  and  Encomium,  applies  in  all  its  Ibrce  to  the  case  of  the  En- 
terprize. 

Compensation  was  not  granted  in  the  cases  of  the  Comet  and  En- 
comium, because  the  owners  were  entitled  to  it  by  the  laws  of  Great 
i'ritain.  This  is  evident  from  the  act  of  Parliament  of  5  Geo.  4,  c. 
113,  consolidating  the  laws  for  the  abolition  of  the  slave  trade,  and 
which  received  the  royal  sanction  in  1824.  The  third  and  tenth  sec- 
tion of  that  act  provides  "  that  any  person  who  sliall  import  or  bring 
into  any  place  wliatever  in  the  British  possessions,  slaves  or  other 
persons,  in  order  to  their  being  dealt  with  as  slaves,  shall  be  declared 
guilty  of  felony,  and  may  be  transported  for  a  term  of  fourteen  years." 


190 


ADJUSTMENT    OF   CLAIMS  UNDER   THE 


iii 


!  !f:| 


This  law  was  in  force  when  both  the  Comet  and  Encomium  arrived  in 
Bermuda.  It  abolished  slavery  in  regard  to  all  persons  imported,  or 
brought  into  Bermuda,  as  effectually  as  did  the  act  of  the  28th  Au- 
gust^ 1833,  abolish  slavery  in  those  persons  who  were  already  within 
the  British  empire.  Yet  the  British  secretary  for  foreign  affairs  ad- 
mits that,  notwithstanding  the  law  forbidding  the  bringing  in  of 
slaves,  the  owners  of  those  slaves  on  board  the  Comet  and  Encomium 
were  lawfully  in  possession  of  them  Avithin  British  jurisdiction.  It 
is,  therefore,  evident  that  the  right  to  them  did  not  depend  upon 
British  law,  but  must  have  rested  upon  the  laws  of  their  own  country. 
The  question  then  arises,  how  the  laws  of  the  United  States  could 
have  force  within  British  territory,  and  especially  when  contrary  to 
the  laws  there  existing  ?  The  answer  to  this  question  will  be  found  in 
the  code  which  regulates  the  intercourse  of  nations.  These  vessels, 
when  on  the  high  seas,  were  under  the  protection  of  the  law  of  nations, 
and  when  driven  by  necessity  into  a  foreign  jurisdiction,  they  were 
surrounded  by  that  law  and  shielded  from  any  control  of  the  local  au- 
thorities. The  overruling  power  of  international  law  isolated  the 
distressed  vessel  and  the  persons  and  property  on  board,  and  with- 
drew them  from  the  operation  of  a  municipal  law  to  which  they  had 
not  voluntarily  submitted  themselves,  and  preserved  in  force  that  of 
their  own  country. 

The  British  secretary  for  foreign  affairs  has  admitted  that  there 
is  no  difference  between  the  cases  ox  tiie  Comet  and  Encomium  and 
that  of  the  Enterprize,  except  that  the  two  former  occurred  before, 
and  the  latter  one  after  the  act  of  Parliament  for  the  abolition  of 
slavery  in  the  British  islands  had  taken  effect.  The  act  putting  an 
end  to  the  slave  trade,  to  which  I  have  referred,  prohibited  slaves 
from  being  brought  in  under  any  circumstances  ;  but  it  did  not  over- 
rule the  law  of  nations.  When  slaves  were  found  in  Bermuda  on 
board  the  Comet  and  Encomium,  the  American  citizens,  notwith- 
standing this  law,  kept  possession  of  their  slaves.  Why,  then,  should 
the  act  of  Parliament  for  the  abolition  of  slavery  in  those  negroes 
already  in  Bermuda  have  the  effect  to  liberate  slaves  not  brought  in, 
but  forced  into  British  jurisdiction  by  necessity?  The  law  emanated 
from  the  same  authority ;  and  if  the  slaves  on  board  the  Comet  and 
Encomium  were  lawfully  in  possession  of  their  owners  within  British 
territory,  as  Lord  Palmerston  says  they  were,  for  the  same  reason  tlio 


arrived  in 
)orted,  or 
28th  Au- 
ly  within 
ifFairs  ad- 
ng   in  of 
Incomium 
ction.     It 
jnd  upon 
I  country, 
ites  could 
jntrary  to 
e  found  in 
le  vessels, 
>f  nations, 
they  were 
e  local  au- 
)lated  the 
and  witli- 
1  they  had 
[■ce  that  of 

that  there 
nium  and 
red  before, 
.bolition  of 
)utting  an 
ited  slaves 

not  over- 
ermuda  on 

notwith- 
en,  should 
>se  negroes 
rought  in, 

emanated 
Coniet  and 
\\n  British 
reason  the 


CONVENTION    WITH   GREAT   BRITAIN. 


191 


conclusion   is  irresistible  that  the  slaves  on  board  the  Enterprize 
were  in  like  manner  lawfully  held  there  by  their  masters. 

But  the  chief  argument  in  support  of  the  position  of  the  British 
minister,  in  justification  of  his  r  fasal  to  grant  compensation  in  the 
case  of  the  Enterprize,  and  which  has  been  strongly  urged  here,  is, 
that  "before  the  time  this  vessel  arrived  at  Bermuda,  slavery  had 
been  abolished  throughout  the  British  empire.     Is  this  true?     Had 
Grreat  Britain  done  what  the  title  of  the  act  of  Parliament  imports  ? 
I  propose  to  sliow  that  this  so  called  philanthropic  law  did  not  abolish 
slavery  throughout  the  empire  ;  that  it  had  in  it  a  proviso  which  ex- 
empted a  large  part  of  tlie  British  possessions  from  its  operation  ;  and, 
consequently,  that  Lord  Palmerston's  argument  entirely  fails.     I  have 
before  me  the  act  of  Parliament,  dated  the  28th  of  August,  1833,  and 
which  is  entitled,  *' An  act  for  the  abolition  of  slavery  throughout  the 
British  colonies."     It  partly  took  eflfect  on  the  1st  day  of  August, 
1834,  and  the  twelfth  section  declares,  *'that  from  and  after  the  said 
first  day  of  August,  1834,  slavery  shall  be,  and  is  hereby,  utterly  and 
forever  abolished  and  declared  unlawful  throughout  the  British  colo- 
nies, plantations,  and  possessions  abroad."     If  there  was  no  reserving 
clause  in  this  act,  it  would  certainly  mean  that  slavery  had  been 
abolished  throughout  the  British  colonies  ;  but  when  we  look  at  the 
forty-fourth  section,  it  appears  that  no  such  interpretation  can  be 
given  to  it.     That  section  is  in  these  words : 

"And  he  it  further  enacted,  That  nothing  in  this  act  contained  doth 
or  shall  extend  to  any  of  the  territories  in  the  possession  of  the  East 
India  Company,  or  to  the  Island  of  Ceylon,  or  to  the  Island  of  St.  He- 
lena." 

I  have  repeatedly  called  the  attention  of  the  British  agent  to  this 
section  of  the  law,  which  re-established  slavery  in  these  possessions,  if 
the  twelfth  section  abolished  it,  but  he  has  been  unable  to  make  any 
explanation.  I  have  asked  him  to  show  me  when  and  how  Parlia- 
ment abolished  slavery  in  these  possessions  of  her  Majesty  in  the  east, 
and  he  has  been  unable  to  give  me  any  answer.  He  has  reposed  en- 
tirely upon  the  assertion  of  the  British  minister,  that  slavery  had 
been  everywhere  abolished  in  her  Majesty's  dominions,  which  we  have 
seen  is  not  sustained  by  the  act  of  Parliament.  The  law  for  the  ex- 
tension of  the  Eaot  India  Company's  charter,  passed  on  the  very  same 
day,  proves  even  more  clearly  that  the  so-called  emancipation  act  was 


ii 


192 


ADJUSTMENT  OF  CLAIMS    UNDER   THE 


!,  i; 


not  designed  to  abolish  slavery  beyond  the  Cape  of  Good  Hope,  as  it 
has  been  alleged  it  did.  It  will  be  seen  by  the  eighty-eighth  section 
of  that  act,  that  only  a  prospective  abolition  of  slavery  was  designed 
in  the  parts  of  the  empire  under  the  East  India  Company.  This  act 
requires  the  governor  general  of  India,  in  council,  **to  take  into  con- 
sideration the  means  of  mitigating  the  state  of  slavery,  and  of  extin- 
guishing it  throughout  the  said  territories  so  soon  as  such  extinction 
shall  be  practicable  and  safe ;"  and  it  further  requires  that  "all  the 
measures  adopted  for  this  purpose  should  every  year  be  laid  before 
both  houses  of  Parliament.'  If  it  was  true  that  slavery  had  been 
abolished  before  the  time  when  these  slaves  on  the  Enterprize  were 
liberated,  the  British  agent  could  very  easily  give  the  i)roof  by  laying 
before  the  commission  the  documents  submitted  to  Parliament  by  the 
governor  general  of  India,  but  he  lias  produced  none ;  and  I  now  repeat 
the  call  upon  him,  to  show  whether  it  ceased  in  the  parts  of  the  empire 
exempted  by  the  act  of  1833,  before  the  time  when  these  transactions 
took  place.  This  he  cannot  do  ;  for  it  will  be  found,  by  reference  to 
Campbell's  History  of  India,  that  the  British  com-ts  in  that  colony  took 
cognizance  of  the  institution  of  slavery,  as  existing  under  English  law, 
during  Lord  Ellenborough's  governor-generalship.  He  entered  on  his 
duties  in  1841 .  This  was  after  all  the  slaves  were  liberated  for  which 
Ave  claim  comitensation.  So  that  slavery  was  recognized  and  existed 
by  force  of  British  law  during  the  whole  period  of  these  transactions. 
The  laws  so  recognizing  it  were  on  the  statute  book,  yet,  in  the  face 
of  these  acts  of  Parliament,  the  British  minister  formally  maintained 
that  slavery  had  been  abolished  throughout  the  British  empire. 

If  the  existence  of  slavery,  which  these  facts  so  incontrovertibly 
establish,  was  known  to  the  British  minister  when  he  made  the  asser- 
tion that  it  had  been  abolished  throughout  the  British  empire,  then 
his  declaration  needs  no  comment  from  me;  but  if,  on  the  contrary, 
he  was  ignorant  of  any  such  provision  of  the  law,  the  government,  or 
the  British  agent  on  its  behalf,  should  hasten  to  retract  this  state- 
ment, and  admit  the  justice  of  our  claim. 

In  the  argument  of  Lord  Palmerston,  which  has  been  so  much  relied 
upon,  he  says:  "If  a  ship  containing  animals  were  driven  by  stress  of 
weather  into  a  ioreign  port,  it  would  be  unjust  to  deprive  the  owner  of 
his  property  by  the  operation  of  any  particular  law  in  force  in  that 
port."     This  is  true,  and  because  it  is  unjust  the  law  of  nations  inter- 


GOMYBNTION   WITH  OBEAT  BRITAIN. 


193 


poses  its  authority,  and  takes  the  individual  and  his  property  under 
its  protection. 

A  different  doctrine  is,  however,  held  hy  his  lordship  in  regard  to  a 
vessel  so  driven  into  a  foreign  port,  having  slaves  on  board.  It  is 
alleged  that  "there  are  then  three  partiq^  to  the  transaction — the  owner, 
the  local  authority,  and  the  alleged  slave;"  and  it  is  said  that  ''the 
latter  has  an  e<iual  right  with  the  former  to  appeal  to  the  local  law  for 
such  protection  as  the  law  of  the  land  may  aftbrd  him.*'  This  is  an 
assumption  of  the  whole  question  at  issue,  and  in  the  next  sentence 
he  proceeds  to  make  this  assumption  even  more  manifest ;  his  lordship 
continues,  ''  if  men  who  have  been  held  in  slavery  are  brought  into  a 
country  where  the  condition  of  slavery  is  unknown  and  forbidden, 
they  are  necessarily,  and  by  the  nature  of  things,  placed  at  once  in 
the  situation  of  aliens,  who  have  at  all  times  from  their  birth  been 
free.^  *^*-  •  '    •        '  *     y    '  '"  '  • 

Here  it  is  assumed  that  these  slaves  were  brought  into  the  country, 
which  was  not  the  case,  as  they  were  forced  in  by  distress.  It  is  not 
denied  that  the  "  Enterprize"  was  driven  in  by  necessity,  as  were  the 
"Comet"  and  "Encomium."  The  latter  two  vessels,  under  the  cir- 
cumstances in  which  they  entered  into  British  jurisdiction,  were  not 
regarded  by  her  Majesty's  government  as  being  under  the  control  of 
the  law  for  the  abolition  of  slavery  in  slaves  brought  in;  and  it  would 
then  surely  be  unjust  to  construe  any  other  law,  emanating  from  the 
.same  legislature,  to  deprive  persons  of  their  slaves  under  the  same 
circumstances.  Not  one  of  these  vessels  could,  under  the  law  of  na- 
tions, be  regarded  as  within  the  British  jurisdiction.  It  is  true,  they 
were  inside  the  boundaries  of  the  territory  of  Great  Britain,  but  in 
the  waters  where  they  floated  tlie  law  of  nations  was  supreme.  It  is 
not  a  new  principle  that  persons  and  property  may  be  within  the  limits 
of  a  foreign  country  and  still  be  exempt  from  its  control.  It  is  so  with 
ambassadors  and  other  public  ministers  and  their  suites,  ar.d  it  is 
equally  applicable  to  vessels  that  enter  a  blockaded  port  from  neces- 
sity. The  foundation  of  this  right  of  toroign  vessels  to  take  possession 
of  a  part  of  the  ocean,  which  one  nation  usually  occupies  as  property, 
is  to  be  found  in  the  institution  of  property  itself.  Property  was  never 
designed  to  effect  its  own  destruction,  and  hence,  when  that  would  take 
place,  it  ceases  to  be  property.  When  a  vessel  at  sea  is  in  imminent 
danger  of  sinking,  the  captain  or  any  other  person  on  board  has,  in 

13 


194 


ADJUSTMENT   OF  CLAIMS   UNDER   THE 


order  to  save  the  vessel,  the  right  to  throw  overboard  his  neighbor's 
projjerty  as  well  as  his  own.  The  division  of  property  is  at  an  end, 
and  it  becomes  as  common  as  the  air  or  the  light  of  heaven.  A  like 
principle  is  applicable  tt>  the  individual  member  of  society.  He  sur- 
renders to  the  state  the  righl^to  redress  his  wrongs  and  protect  him 
from  injury  ;  but  when  he  is  attacked  on  the  highway  and  his  life  put 
in  imminent  danger,  his  original  rights  revert  to  him,  and  he  may 
lawfully  put  the  assassin  to  death.  If  this  same  doctrine  be  applied  to 
the  division  of  portions  of  the  high  seas  among  nations,  it  will  exempt 
the  "Enterprize  "  from  molestation  in  British  waters.  The  ocean  is 
the  common  property  of  all  nations,  and  their  vessels  have  the  equal 
right  to  navigate  it.  But,  by  consent,  nations  have  appropriated  the 
bavs  and  harbors  and  exercise  a  control  over  the  distance  of  a  marine 
league  from  the  shore.  When  a  vessel  in  distress  comes  into  these 
waters  where  the  nation  ordinarily  exercises  jurisdiction,  the  nation's 
authority  does  not  attach  to  the  necessitous  vessel.  She  has  a  right  to 
enter  the  port,  and  may  do  so  even  in  opposition  to  the  authorities  of 
the  place. 

This  doctrine  does  not  rest  alone  on  general  reasoning,  but  it  is  fully 
supported  by  Vattel.  In  remarking  upon  the  duty  of  a  nation  to  allow 
vessels  the  use  of  their  waters,  even  when  they  are  not  in  distress,  and 
when  it  may  be  done  without  damage  or  danger^  he  admits,  that  in 
that  case  it  may  be  refused,  and  makes  the  nation  claiming  the  waters 
the  judge  in  each  particular  case.  But  he  says  "it  is  otherwise  in 
cases  of  necessity,  as  for  instance,  when  a  vessel  is  obliged  to  enter  a 
road  which  belongs  to  you  in  order  to  shelter  herself  from  a  tem- 
pest.*' "In  this  case  the  right  of  entering  wherever  we  can,  provided 
we  cause  no  damage,  or  that  we  repay  any  damage  done,  is,  as  we 
shall  show  more  at  large,  a  remnant  of  the  primitive  freedom  of  ivhich 
no  man  can  he  supposed  to  have  divested  himself,  and  the  vessel  may 
laiofully  enter  in  spite  of  you,  if  you  unjustly  refuse  Iter  permission." 

If  the  vessel  can  enter  under  these  circumstances,  it  is  the  law  of 
nations  which  enables  her  to  do  it,  and  exempts  her  from  the  local 
law,  and  secures  her  in  the  enjoyment  of  the  laws  of  the  country  to 
which  she  belongs,  till  the  distress  be  relieved,  and  she  is  enabled  to 
depart  with  her  cargo. 

The  argument  of  Lord  Pahnerston  continues  thus :  "  If,  indeed,  a 
municipal  law  be  made,  which  violates  the  law  of  nations,  a  question 
of  another  kind  may  arise,  but  the  municipal  law  which  forbids 


CONVENTION  WITH  GREAT   BRITAIN. 


195 


sighbor's 
t  an  end, 
.     A  like 
He  8ur- 
)tect  him 
is  life  put 
I  he  may- 
applied  to 
ill  exempt 
le  ocean  is 
the  equal 
)riated  the 
'  a  marine 
into  these 
le  nation's 
a  right  to 
bhorities  of 

t  it  is  fully 
on  to  allow 
istress,  aiul 
ts,  that  in 
the  waters 
lerwise  in 
to  enter  a 
oni  a  tem- 
n,  provided 
e,  is,  as  we 
nn  of  tvhkh 
vessel  may 
nission." 
the  law  <if 
im  the  local 
country  to 
enabled  to 

f,  indeed,  a 
,  a  question 
Ich  forbids 


slavery  is  no  violation  of  the  law  of  nations.  It  is,  on  the  contrary, 
in  strict  harmony  with  the  law  of  nature,  and  therefore,  when  slaves 
are  liberated  according  to  such  municipal  law,  there  is  no  wrong  done, 
and  there  can  be  no  compensation  granted." 

I  am  unable  to  perceive  any  less  criminality  or  less  offence  to  foreign 
nations  in  construing  a  municipal  law  so  as  to  violate  international 
rights,  and  in  making  one  to  do  that  in  express  terms.  The  emanci- 
pation act  of  Great  Britain  is  certainly  no  violation  of  the  law  of  na- 
tions when  its  effect  is  confined  to  British  jurisdiction  ;  but  when  it  is 
enforced  in  the  territory  of  another  country,  it  is  as  much  so  as  if  it 
had  been  expressly  designed  for  that  object.  It  has  been  shown  by 
reason  and  by  authority  that  the  vessels  of  a  nation  driven  by  distress 
to  seek  shelter  in  a  foreign  port  are  guarded  by  international  law,  and 
remain  subject  to  the  laws  of  the  country  to  which  they  belon|^  The 
enforcement  of  the  emancipation  act  of  Great  Britain  upon  the  Ameri- 
can brig  *  *  Enterprize ' '  was  then  a  violation  of  the  law  of  nations,  for 
which  we  are  entitled  to  damages.  ..     "^ 

The  fallacy  of  his  lordship's  argument  may  be  further  shown  by 
illustration.  Suppose  a  vessel  transporting  soldiers  from  England  to 
Canada  should,  by  stress  of  w^eather,  be  compelled  to  enter  the  port 
of  New  York,  and  the  marshal  should  go  on  board  and  say  to  the 
commander,  your  soldiers  are  enlisted  for  life,  our  law  forbids  the 
holding  of  soldiers  for  a  longer  time  than  five  years,  and  those  on 
board  your  vessel  must  be  set  at  liberty.  When  her  Majesty's  gov- 
ernment shall  demand  redress  for  this  act.  Lord  Palmcrston  has  fur- 
nished us  the  answer.  We  may  reply,  that  the  municipal  law  which 
forbids  the  enlistment  of  soldiers  for  more  than  five  years  is  no  viola- 
tion of  the  law  of  nations  ;  on  the  contrary,  it  is  in  strict  harmony 
with  it,  and  when  soldiers  are  liberated  according  to  this  law  there  is 
no  wrong  done.  This  is  an  answer  which  would,  I  imagine,  be  quite 
as  unsatisfactory  to  her  Majesty's  government  as  it  has  been  to  the 
United  States. 

At  the  risk  of  fatiguing  the  patience  of  the  umpire  on  a  question 
that  must  be  already  understood  by  him,  I  will  illustrate,  by  another 
example  not  unlikely  to  occur,  the  fallaciousness  of  the  British  argu- 
ment. By  the  laws  of  Turkey,  one  man  is  allowed  to  have  a  plurality 
of  wives;  in  Christian  countries  it  is  not  so.  If  a  Turkish  vessel 
should  be  driven  by  a  storm  into  a  British  port,  could  the  sheriff  go 


M^' 


i 
k 

i 


■i. 


utmmmmnmimmmmm 


^i^Kmm 


196 


ADJUSTMENT   OF  CLAIMS   UNDER  THE 


on  board  and  take  away  one  of  the  captain's  wives  by  authority  of  the 
British  law  ?  The  principle  of  the  British  government  contended  for 
is,  that  ho  could  and  might  reply  in  his  own  justification,  and  on  be- 
half of  his  government  to  any  claim  for  reparation,  that  the  munici- 
pal law  of  England,  which  forbids  a  man  to  have  more  than  one  wife, 
is  no  violation  of  the  law  of  nations  ;  it  is,  on  the  contrary,  in  strict 
harmony  with  the  law  of  nature,  and  therefore  when  wives  are  libe- 
rated according  to  such  municipal  law,  there  is  no  wrong  done,  and 
no  reparation  can  l)e  made.  These  propositions  are  perfectly  true,  yet 
who  will  say  this  answer  ought  to  be  accepted  l)y  Turkey,  or  acqui- 
esced in  by  the  civilized  world.  It  is,  nevertheless,  the  response 
made  by  the  British  government  to  avoid  making  compensation  for  a 
violation  of  national  rights  under  circumstances  entirely  similar.  It 
is  to|^event  the  injustice  and  confusion  which  the  British  rule  would 
produce,  that  international  law  interposes  its  authority  ;  and  it  has 
been  a  matter  of  surprise  to  me  that  the  British  government  should 
wish  to  set  aside  a  rule  so  beautiful  in  principle  and  so  salutary  in  its 
results . 

I  have  shown  by  the  acts  of  Parliament  that  slavery  was  not  abol- 
ished in  the  island  of  St.  Helena,  nor  in  her  Majesty's  possessions  east 
of  the  Cape  of  Good  Hope,  by  the  emancipation  act  of  1833 ;  and  T 
shall  now  endeavor  to  prove  that  it  had  no  such  effect  even  in  the 
West  India  colonies,  till  1840. 

The  name  of  the  condition  of  slavery  was  changed  for  that 
of  apprenticeship,  during  the  period  from  1834  to  1840,  the  time 
the  act  took  complete  effect,  and  the  civil  rights  of  the  slave  re- 
ceived a  gradual  increase  during  that  period ;  but  they  were 
still  controlled  by  their  masters,  could  be  transferred  by  will,  by 
bargain  and  sale,  or  sold  under  execution.  These  are  the  essential 
qualities  of  property,  and  not  at  all  similar  to  the  rights  which  the 
law  of  England  gives  to  the  master  over  his  apprentice.  Neverthe- 
less, Lord  Palmerston  says:  "These  apprenticeships  only  give  to  the 
master,  and  for  a  limited  time,  with  respect  to  the  individual  who  was 
once  his  slave,  the  same  rights  which  a  master  in  England  has  by 
law  over  bis  apprentice."  Lord  Mansfield  was  of  a  different  opinion, 
and  held,  in  the  case  of  the  King  vs.  the  Inhabitants  of  Stockland, 
that  an  apprentice  was  not  assignable  or  transferable,  without  his 
consent.  The  West  India  apprentices  could,  as  I  have  already  said, 
be  transmitted  by  will,  transferred  by  bargain  and  sale,  or  sold  on 


i 


CONVENTION  WITH    GREAT   BRITAIN. 


197 


execution,  in  the  same  manner  m  a  horse  or  any  other  piece  of  per- 
sonal property.  "Who  ever  know  an  apprentice  in  England  to  be 
transmitted  by  will,  or  levied  on  as  property  and  sold  at  auction?  Ap- 
prenticeship is  a  personal  trust  which  ceases  on  the  death  of  the  mas- 
ter; hence  there  is  no  similarity  between  the  condition  of  apprentices 
and  that  of  the  negroes  called  apprentices  in  the  West  Indies,  except 
in  name.  It  is  not  true,  then,  as  Lord  Palmerston  asserts  in  his  de- 
spatch, that  "  these  apprenticeships  only  gave  to  the  master  the  same 
rights  which  a  master  in  England  has  by  law  over  his  indentured 
apprentices." 

The  West  India  negroes  were  really  slaves  still ;  possessing, 
it  is  true,  a  few  more  rights  than  they  had  previous  to  the  eman- 
cipation act.  If  these  increased  rights  of  the  slave  can  change 
the  name  of  his  condition,  we  should  also  change  the  name  of  .«?are  in 
the  United  States  to  something  less  harsh.  The  name  slave  was  origi- 
nally designed  to  describe  a  condition  which  no  longer  exists.  When 
slavery  was  first  established  among  men,  it  was  a  substitute  for  death, 
which  the  conqueror  assumed  the  right  to  inflict  upon  his  enemy. 
The  slave  had  no  rights  except  those  which  depended  on  the  will  of 
his  master,  but  in  the  United  States  now,  he  possesses  a  large  share 
of  civil  rights,  and  has  become  u  domestic  servant. 

The  policy  of  this  act,  in  gradually  augmenting  the  privileges  of  the 
negro,  is  not  original  with  Great  Britain;  it  had  its  origin  in  America. 
In  those  States  where  slavery  has  been  abolished,  slavery  for  years  was 
first  substituted  instead  of  that  for  life ;  and  the  civil  rights  of  the  slave 
received  an  augmentation  quite  equal  to  that  of  the  apprentices  in  the 
West  Indies,  yet  they' were  still  designated  as  slaves.  If  a  vessel  con- 
taining slaves  of  this  description  should,  by  stress  of  weather,  be  forced 
to  seek  refuge  in  Bermuda,  could  her  Majesty's  government  discriminate 
between  them  and  the  negro  apprentices  in  that  island  ?  I  apprehend 
not.  It  cannot,  therefore,  be  true  that  slavery  was  abolished  at  the 
period  of  these  transactions,  eve||  if  the  municipal  law  be  appealed  to 
for  the  rule.  On  the  contrary,  the  actual  relation  of  the  master  and 
the  negro  was  in  efiect  the  same  as  it  was  when  the  Comet  and  the 
Encomium  were  driven  into  British  waters,  and  the  slaves  on  board 
liberated.  The  obligation  to  pay  for  the  slaves  on  board  these  ves- 
sels has  been  acknowledged  and  discharged,  and  I  can  perceive  no 
reason,  even  from  a  British  point  of  view,  for  refusing  compensation 
in  the  case  of  the  Enterprize. 


198 


ADJUSTMENT  OF  CLAIMS   UNDER  THE 


The  Britiflh  secretary,  iu  h'ln  dispatch,  HnnounooH  tliu  doctrine  that, 
wince  the  emancipation  act,  no  property  can  exist  in  shives  within  her 
Majesty's  dominions  ;  and  this  declaration  has  been  relied  on  by  the 
Jkitish  agent.  This  assertion  contains  the  assumption,  invariably 
made,  that  the  slaves  were  within  British  jurisdiction,  which  it  has 
been  shown  was  not  the  fact.  They  were  on  board  the  vessel,  which 
tbrmed  a  part  of  the  territory  of  the  United  States  ;  and  to  maintain 
the  position  of  the  British  government,  it  is  necessary  to  take  the 
absurd  position  that  a  nation  has  no  right  to  make  laws  for  its  own 
government. 

This  same  doctrine  has  been  advanced  by  the  British  agent  himself, 
though  in  somewhat  different  language  from  his  minister.  The  coun- 
sel says:  "The  principle  on  which  the  right  of  every  man  to  personal 
liberty  within  British  territory  is  attached  is  that  some  law  must  bo 
appealed  to  to  justify  the  restraint  of  liberty,  and  neither  the  appren- 
tice law  nor  any  other  law  can  be  appealed  to  to  justify  the  restraint 
of  these  negroes,"  and  hence  her  Majesty's  authorities  were  right  in 
liberating  them. 

We  appeal  to  the  law  of  nations  and  the  laws  of  the  country  to 
which  the  vessel  belongs  to  secure  the  owner  in  the  possession  of  his 
slaves ;  and  it  will  not  be  difficult  to  show  that  the  laws  of  England 
have  heretofore,  in  cases  entirely  similar,  given  him  protection.  Rea- 
son and  authority  both  concur  in  establishing  the  interpretation  that 
international  law  isolates  the  vessel  driven  by  necessity  into  a  foreign 
port,  and  preserves  in  force  the  laws  of  her  own  country.  She  carries 
with  her  the  rights  which  she  possessed  on  the  high  seas,  and  it  has 
been  held  in  Westminster  Hall  that  those  rights,  when  invaded,  may 
be  enforced  in  a  British  court  of  justice,  whatever  may  be  the  law  of 
England  on  the  subject.  This  was  settled  in  the  king's  bench,  in  the 
case  of  Madraggo  vs.  Willes,  reported  in  3  Barnwell  &  Aldersou. 
The  plaintiff  was  a  Spaniard,  engaged  in  the  African  slave  trade. 
This  trade  Avas  illegal  by  the  laws  of  England,  but  not  so  by  the  laws 
of  Spain.  The  defendant,  a  captain  in  the  British  navy,  seized  on  the 
high  seas  the  plaintiff's  ship  with  three  hundred  slaves  on  board,  and 
they  were  set  at  liberty.  A  suit  was  brought,  and  the  jury  found 
twenty-one  thousand  pounds  damages,  *'  being  three  thousand  pounds 
for  the  deterioration  of  the  ship's  stores,  &c.,  and  eighteen  thousand 
for  the  supposed  profit  of  the  cargo  of  slaves."    It  was  then  contended. 


CONVENTION    WITH    GREAT   BRITAIN. 


199 


'i 


as  it  has  been  botbro  this  cominisHioii,  that  an  slavery  was  unlawful  by 
the  British  Htatuten,  no  one  could  recovor  (lama};e8  for  slaves  liberated 
iiiuler  tho  circumstaim  ^  in  the  ease.  Hut  the  cotirt  did  not  sustain 
this  position;  it  held  "  that  iiUhough  tho  language  used  })y  the  legis- 
lature in  the  statutes  rolorrod  to  is  uii<b)ubtedly  very  large  and  exten- 
sive, yet  it  can  only  'pply  to  IJi  itish  subjects,  and  can  only  render  the 
slave  trode  unlawful  it  cui  ricd  on  by  thciii ;  it  cannot  apply  in  any  way 
to  a  foreigner."  Tho  court  tiirther  said  "that  if  tliis  was  a  trade  con 
trary  to  tho  law  of  nations,  a  foreigner  could  not  maintain  this  action. 
But  it  is'  not ;  and,  as  a  Spaniard  cannot  be  considered  as  bound  by 
the  acts  of  tho  British  legislature  prohibiting  this  trade,  it  would  be 
unjust  to  deprive  him  of  a  remedy  for  the  wrong  which  he  has  sus- 
tained. Ho  had  a  legal  property  in  the  slaves  of  which  he  has  by  the 
defendant's  act  been  ileprivod."  ' 

It  was  not  the  law  of  England  which  secured  these  slaves  to  the 
Spaniard,  for  that  law  did  not  recognize  the  right  of  property  in  them ; 
it  must  therefore  have  been  the  law  of  nations  which  gave  the  rule 
and  which  recognized  slavery  in  its  most  odious  form,  and  enforced 
that  law,  securing  the  Spaniard  in  the  possession  of  his  property  in 
them. 

It  appears  from  this  decision,  rendered  in  1820,  that  the  court  of 
king's  bench  protected  at  that  time  the  right  of  property  in  slaves, 
although  that  condition  was  not  then  sanctioned  by  the  laws  of  Great 
Britain .  If  England  acknowledged  this  right  at  that  time,  and  deemed 
it  so  sacred  that  she  enfcrrced  it  contrary  to  her  own  laws,  it  would 
seem  extraordinary  that  the  authorities  of  Bermuda  should  disregard 
this  interpretation  of  the  public  law,  and  forcibly  liberate  the  domes- 
tic slaves  of  the  United  States,  passing  on  the  high  seas  from  one  part 
of  our  countl-y  to  another,  and  driven  by  distress  to  seek  shelter  in 
British  waters.  But  strange  as  this  disregard  of  the  law  declared  by 
the  king's  bench  may  appear,  the  British  cabinet  has  sustained  it, 
and  thus  sanctioned  a  flagrant  invasion  of  the  rights  of  a  friendly 
nation.  The  principles  of  law  and  justice  remain  the  same,  but  Eng- 
land has  changed  her  policy,  and  the  judgment  of  her  highest  common 
law  court  no  longer  protects  the  foreigner  in  the  enjoyment  of  his 
property.       r         :'    »    •  '•     .-  ,  ^ 

I  have  already  said  that  it  is  admitted,  in  the  despatch  of  Lord 
Palmerston  to  which  I  have  .:o  often  called  the  attention  of  the  umpire, 


200 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


an 


III: 


HI 

!       1 

II 

that  if  a  ship  containing  animals  were  driven  by  stress  of  weather 
into  a  foreign  port,  it  would  be  unjust  to  deprive  the  owner  of  his 
property,  by  the  operation  of  any  particular  law  in  existence  there, 
because,  in  such  case,  there  would  be  but  two  parties  interested  in  the 
transaction,  the  foreign  owner  and  the  local  authority  ;  but  when  the 
property  cast  on  a  foreign  shore  is  a  slave,  he  contends  that  then  the 
rule  does  not  apply,  because  there  are  then  three  parties  concerned, 
the  foreign  government_,  the  local  authority,  and  the  alleged  slave, 
and  that  the  slave  can  appeal  to  the  local  law  for  his  protection.  This 
statement  is,  I  repeat,  an  assumption  of  the  point  in  controvc?rsy.  It 
assumes  that  the  slave  is  not  property,  and  that  he  is,  besides,  under 
the  jurisdiction  of  the  local  law,  although  driven  into  the  foreign  port 
by  distress.  In  reference  to  the  latter  branch  of  the  argument,  it  has 
already  been  shown  that  the  vessel,  with  the  slaves  on  board,  was 
under  the  guardianship  of  the  law  of  nations  and  exempt  from  the 
operation  of  the  local  law ;  but  if  this  were  not  the  case,  and  the  juris- 
diction were  acknowledged,  the  slaves  must  be  regarded  as  property, 
as  much  so  as  if  a  horse  were  found  there.  This  is  the  English  law, 
declared  by  Sir  W.  Scott  in  the  case  of  Demerara  and  its  dependencies, 
1  Dod.  Kep.  This  was  a  question  respecting  certain  slaves  which 
were  taken  at  Demarara  when  that  colony  and  its  dependencies  sur- 
rendered to  his  Majesty's  land  and  sea  forces.  The  captors  prayed 
the  condemnation  of  three  hundred  and  ninety  slaves  as  prize  of 
war,  on  the  ground  that  under  the  words  of  the  prize  act  they  would 
pass  to  the  captors  as  ''goods  or  merchandise." 

The  first  question,  said  Sir  William  Scott,  is  whether  slaves  are  at 
all  given  to  the  captors  by  the  prize  act,  that  is,  ''whether  they  pass  by 
the  words  'stores  of  war,  goods,  merchandize,  or  treasure,'  which,  by 
the  statute,  are  to  be  deemed  prize.  Now  the  fact  is,  that  slaves  have 
generally  been  considtjred  as  personal  property.  In  our  West  India 
colonies,  where  slavery  is  continued,  and  is  likely  to  continue,  longer 
than  in  any  of  the  countries  of  Europe,  slaves  have  been  ft>r  some  pur- 
poses considered  as  real  property,  but  I  apprehend  that,  where  the  con- 
trary is  not  shown,  the  general  character  and  description  of  them  is  that 
they  are  personal  property,  and  I  see  no  reason  in  the  present  case  for 
saying  that  they  are  not  within  the  general  rule,  and,  consequently, 
that  they  are  not  to  be  considered  as  'goods  or  merchandize,'  They  are 
liable  to  be  transferred  by  purchase  and  sale;  and,  although  the  owner 


a& 


CONVENTION  WITH   GREAT   BRITAIN. 


201 


may  choose  to  employ  them  on  his  own  works  instead  of  transferring 
them  for  a  valuahle  consideration,  they  are  not,  I  apprehend,  the  less 
'  goods  or  merchandise '  on  that  account."  Now  suppose  there  was  a 
law  prohibiting  the  introduction  of  horses  into  England,  and  a  vessel 
containing  a  cargo  of  these  animals  should  be  compelled  to  seek  shel- 
ter in  an  English  port,  the  British  minister  says  this  property  would 
be  returned  to  the  owner  because  the  animal  may  be  made  property. 
But  we  have  seen  by  the  case  of  Demerara  and  its  dependencies,  that 
by  the  English  law  slaves  are  considered  as  "  goods  or  merchandise," 
and  the  right  of  property  is  as  complete  in  a  slave  as  it  is  in  the  horse. 
It  seems  to  me,  therefore,  that  upon  the  British  doctrine  they  cannot 
refuse  to  restore  our  slaves  on  the  ground  that  they  are  not  property. 


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202 


ADJUSTMENT   OF  CLAIMS  UNDBR  THE 


Upham,  United  States  Commissioner  : 

The  Enterprize  sailed  from  Alexandria,  in  the  District  of  Columbia, 
on  ilie  22d  of  January,  1835,  for  Charleston,  South  Carolina.  She 
had  on  board  a  cargo  of  merchandise  and  seventy-three  slaves,  with 
their  owners.  She  was  driven  from  her  course^  and,  after  being  at  sea 
three  weeks,  was  comi)elled,  through  stress  of  weather  and  her  leaky 
condition,  to  put  in  to  Port  Hamilton,  in  the  island  of  Bermuda, 
until  she  could  refit,  and  proceed  on  her  voyage.  While  there,  the 
slaves  on  board  were  seized  and  liberated  by  the  authorities  of  the 
island. 

Claim  for  compensation  was  made  on  the  British  government  for 
the  value  of  these  slaves,  and  various  communications  have  passed 
between  the  two  governments  on  the  subject. 

In  March,  1840,  resolutions  were  submitted  to  the  United  States 
Senate  relative  to  this  claim,  by  Mr.  Calhoun,  which  were  adopted  by 
that  body,  and  which  briefly  set  forth  the  principles  on  which  the 
claim  is  based.  •  '  '  . 

These  principles  ^e:  "That  a  vessel  on  the  high  seas,  in  time  of 
peace,  engaged  in  a  lawful  voyage,  is,  according  to  the  law  of  nations, 
under  the  exclusive  jurisdiction  of  the  State  to  which  she  belongs  ; 
and  that,  if  such  vessel  is  forced,  by  stress  of  weather  or  other  un- 
avoidable circumstance,  into  the  port  of  a  friendly  power,  her  country, 
in  such  case,  loses  none  of  the  rights  aj)pertaining  to  her  on  the  high 
seas,  either  over  the  vessel  or  the  personal  relations  of  those  on  board." 

It  Avas  contended  that  the  Enterprize  came  within  these  principles, 
and  that  the  seizure  and  liberation  of  the  negroes  on  board  of  her,  by 
the  authorities  of  Bermuda,  was  a  violation  of  these  principles  and  of 
the  law  of  nations. 

On  the  other  hand,  it  was  contended  by  the  British  government 
that  slavery  had  been  abolished  in  the  islands  of  Bermuda  by  the 
statute  of  3  d-  4  JFm.  IV,  ch.  73,  passed  August  28,  1833;  and  that 
the  Enterprize,  being  locally  within  the  jurisdiction  of  that  colony, 
the  slaves  on  board  of  her  were  rightfully  liberated  by  virtue  of  such 
law.  .      ' 

This  statement  of  facts  raises  the  question  as  to  tlie  proper  juris- 
diction of  tlie  laws  of  either  country  over  the  Enterprize,  under  tlie 
circumstances  in  wliich  she  was  forced  into  the  harbor  of  Bermuda 


, 


CONVENTION  WITH  GREAT   BRITAIN. 


208 


The  same  question  had  previously  arisen  in  the  cases  of  the  Comet  and 
Encomium.  These  vessels  had  been  thrown,  by  stress  of  weather,  on 
the  Bahama  Islands,  with  slaves  on  board,  which  were  liberated  by 
the  local  authorities.  A  claim  of  compensation  was  made  for  these 
slaves,  which  was  allowed  and  paid. 

It  is  conceded  in  the  correspondence  with  the  British  government, 
that  the  only  difference  between  tlio  cases  referred  to  and  the  present 
is,  that  the  act  3  (fc  4  Wm.  IV,  cJi.  tS,  abolishing  slavery  throughout 
the  British  dominions,  had  not  been  passed  at  tlio  time  the  slaves  of 
the  Comet  and  Encomium  were  liberated,  but  was  in  force  when  the 
claim  under  the  Enterprize  arose.  Various  other  claims  for  compen- 
sation, under  like  circumstances  with  this  case,  have  occurred ;  and 
they  are  constantly  liable  to  occu/,  from  the  nearness  of  the  British 
islands,  es'pecially  the  Bahamas,  to  the  United  States,  and  from  the 
vast  number  of  vessels  constantly  passing  from  one  section  of  the 
Union  to  another  between  these  islands  and  the  mainland,  engaged 
in  the  American  coasting  trade. 

Mr.  Webster,  in  his  letter  to  Lord  Ashburton  of  August,  1842, 
urged  the  adjustment  of  this  question  by  the  British  government ;  and 
thus  describes  the  Bahama  Islands  and  the  trade  passing  along  their 
borders : 

"The  Bahama  Islands,"  he  says,  "approach  the  coast  of  Florida 
within  a  few  leagues,  and,  with  the  coast,  form  a  long  and  narrow 
channel,  filled  with  innumerable  small  islands  and  banks  of  sand. 
On  this  account,  and  from  the  violence  of  the  winds,  and  the  variable 
nature  of  the  currents,  the  navigation  is  difficult  and  dangerous. 
Accidents  are  therefore  frequent,  and  necessity  often  compels  vessels 
of  the  United  States,  in  attempting  to  double  Cape  Florida,  to  seek 
shelter  among  these  islands."  "Along  this  passage,"  he  says  (which 
is  not  less  than  two  hundred  miles  in  length,  and  on  an  average  not 
more  than  fifty  miles  wide,)  "the  Atlantic  States  hold  intercourse 
with  the  States  situated  on  the  Gulf  of  Mexico  and  the  Mississippi 
river;  and  through  this  channel  the  product  of  regions,  vast  in  extent 
and  boundless  in  fertility,  find  their  main  outlets  to  the  markets  of 
the  world." 

During  the  few  years  since  Mr.  Webster's  letter  was  written,  the 
population  of  the  United  States  has  increased  fifty  percent.,  with  a 


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204 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


corresponding  increase  in  the  business  of  the  section  of  country  to 
which  he  refers. 

The  question  before  us,  then,  is  one  of  great  practical  importance, 
and  should  be  permanently  settled,  so  as  to  avoid  all  grounds  of  col- 
lision between  the  two  governments.  Our  province  is  to  settle  this 
case  merely.  It  can  be  done,  liowever,  only  by  applying  to  it  those 
broad  and  acknowledged  principles  of  international  law  Avhich  furnish 
a  general  rule  of  conduct  between  nations. 

I  shall  endeavour  to  ascertain  what  this  law  is.  Before  proceeding, 
however,  to  give  my  views  fully  on  this  subject,  I  shall  advert  briefly 
to  the  various  points  taken  in  the  argument  addressed  to  us  by  the 
learned  consul  for  the  British  government.  *        '  • 

These  points  are :  .      ^  * 

1.  "  That  laws  have  no  force,  in  themselves,  beyond  the'territory 
of  the  country  by  which  they  are  made." 

My  reply  is,  that  this  is  usually  the  case ;  but  it  is  subject  to  the 
important  addition  that  the  laws  of  a  country  are  uniformly  in  force, 
beyond  the  limits  of  its  territory,  over  its  vessels  on  the  high  seas, 
and  continue  in  forjce  in  various  respects  within  foreign  ports,  as  we 
shall  hereafter  show. 

2.  It  is  contended  'Hhat,  by  the  comity  of  nations,  the  laws  of  one 
country  are,  in  some  cases,  allowed  by  another  to  have  operation 
within  its  territory;  but,  when  it  is  so  permitted,  the  foreign  law  has 
its  authortiy  in  the  other  country,  from  the  sanction  given  to  it  there, 
and  not  from  its  origin^,!  institution." 

3.  ''That  every  nation  is  the  sole  judge  of  the  exteni:  and  the 
occasions  on  which  it  will  permit  such  operation,  and  is  not  bound  to 
give  such  permission  where  the  foreign  law  is  contrary  to  its  interests 
or  its  moral  sentiments." 

As  to  these  points,  I  concede  that  there  are  many  laws  of  a  foreign 
country,  in  reference  to  its  own  citizens  or  their  obligations,  that 
another  nation  may  enforce  or  not,  where  the  citizens  of  such  a  country 
voluntarily  come  within  its  borders,  in  order  to  place  themselves 
under  its  jurisdiction.  But  there  are  cases  where  persons  are  forced 
by  the  disasters  of  the  sea  upon  a  foreign  coast,  where,  as  I  contend, 
a  nation  has  fundamental  and  essential  rights,  within  the  ordinary 
local  limits  of  another  country,  of  which  it  cannot  be  deprived,  and 


CONVENTION  WITH  GREAT  BRITAIN. 


205 


that  are  operative  and  binding  by  a  sanction  that  is  wholly  above  and 
beyond  the  mere  assent  of  any  such  state  or  community.  '  ' 

Such  rights  are  defined  by  jurists  as  the  absolute  international 
rights  of  states.  I  might  also  add,  it  is  not  now  a  question  whether 
the  doctrines  of  international  law  shall  prevail  either  in  England  or 
America. 

"International  law,"  says  Blackstone,  'Mias  been  adopted  in  its 
full  extent  by  the  common  law  of  England;  and  whenever  any  ques- 
tion arises  which  is  properly  the  subject  of  its  jurisdiction,  it  is  held 
to  be  part  of  the  law  of  the  land.' — (Black.  Go)i^.  vol.  4,  p.  67) 

International  law  is  also  recognized  by  the  Constitution  of  the 
United  States,  and  it  is  made  the  duty  of  Congress  to  punish  offences 
against  it. 

4.  It  is  contended  "that  England  does  not  admit  within  its  territory 
the  application  of  any  foreign  laws  establishing  slavery,  having 
abolished  the  status  of  slavery  throughout  its  dominions." 

'     This  position  is  open  to  the  exception  taken  to  the  second  and  third 
propositions,  and  is  subject  to  the  same  reply. 

5.  It  is  contended  "that  the  condition  of  apprenticeship,  as  per- 
mitted to  remain  in  the  West  India  Islands  by  the  act  of  3  rf*  4  Wm. 
IV,  ck.  73,  is  no  exception  to  the  abolition  of  slavery  throughout  the 
British  dominions  ;  because,  it  is  said,  the  system  is  entirely  different 
from  slavery  in  point  of  fact,  and  because,  however  near  a  resemblance 
it  may  bear  to  it,  it  could  aftbrd  no  justification  for  an  English  court  to 
hold  that  anotber  sort  of  slavery  was  valid." 

Our  reply  to  this  is,  that  slavery  docs  not  necessarily  depend  on  the 
length  of  time  the  bondage  exists,  but  on  its  character. 

The  apprenticeship  system  continued,  as  to  a  portion  of  those  to 
whom  it  was  applicable,  for  twenty-one  years  ;  and  few  persons  can 
calculate  on  a  lease  of  life  for  a  longer  time. 

Apprentices  also  were  liable  to  be  bought  and  sold,  or  attached  for 
debt.     The   system   therefore   had   all   the   worst   characteristics   of 
slavery. 

Further,  the  net  abolishing  slavery  acknowledged  the  legality  and 
validity  of  slavery  as  an  institution,  as  it  rendered  compensation  for 
the  liberation  of  slaves  according  to  their  resjjective  valuations,  and 
also  gave  to  the  owners  of  slaves  the  benefit  of  a  term  of  intermediate 
service.     If  it  was  not  considered  right  to  lib(u-ate  British  slaves  except 


i 


i 


?'  H' 


i:[ 


! 


I 


i 

I* 
I 

I 


♦  1* 


206 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


f 


on  these  conditions,  how  can  it  be  right  to  compel  the  liberation  of 
American  slaves,  casually  thrown  within  the  country,  when  no  such 
compensation  has  been  made,  or  term  of  service  secured  to  their 
owners? 

This  forced  liberation  of  the  slaves  of  another  government,  without 
compensation,  is  placed  on  the  ground  of  the  universal  "abolition  of 
slavery  thi'oughout  the  British  dominions."  Such  abolition,  however, 
was  not  effected  by  this  act,  as  the  64th  section  provides,  "that  nothing 
in  the  act  contained  doth  or  shall  extend  to  any  of  the  territories  in 
tlie  possession  of  the  East  India  Company,  or  to  the  island  of  Ceylon, 
or  to  the  island  of  St.  Helena. ' '  It  was  merely  enjoined  on  the  East 
India  Company,  by  Parliament  at  the  same  sessi*.  a,  "that  they  should 
forthwith  take  into  consideration  the  means  of  mitigating  slavery  in 
their  possessions,  and  of  extinguishing  it  as  soon  as  it  should  be 
practicable  and  safe,"  and  slavery  was  not  abolished  in  those  provinces 
for  some  years  subsequent  to  that  period. 

It  is  also  said  "that  the  provincial  government  of  Bermudas,  aftw 
the  passage  of  the  general  act  abolishing  slavery,  abolished  the  appren- 
ticeship system  prior  to  the  liberation  of  the  slaves  on  board  the  Enter- 
prize;"  but  such  abolition  was  not  made  till,  under  the  general  law, 
they  had  received  compensation  for  their  slaves. 

C.  "The  principle  on  wliich  the  right  of  every  man  to  personal 
liberty  within  British  territory  is  attached  is,  that  some  law  must  be 
appealed  to  to  justify  the  restraint  of  liberty ;  and  that  neither  the 
apprentice  law  nor  any  other  law  can  be  appealed  to  to  justify  the 
restraint  of  these  negroes." 

To  this  we  reply  that  the  law  of  the  country  from  which  the  vessel 
comes,  as  sustained  and  enforced  by  the  law  of  nations,  can  as  well 
be  appealed  to  on  this  subject  as  on  any  other.  It  is  expressly  ad- 
mitted in  the  argument,  that  the  law  of  nations  may  be  ait[>ealed  to, 
as  exempting  property,  other  than  slaves,  in  cases  of  8hij)wreck  and 
disaster,  and  exempting  vessels  of  war  from  ordinary  municipal  juris- 
diction ;  and  this  is  done  by  giving  to  the  law  of  nations,  in  such  case, 
the  force  and  effect  of  municipal  law,  which  is  all  tliat  is  asked  to  bo 
done  in  this  case. 

7.  It  is  contended  "that  slavery  is  not  a  relation  which  the  British 
government,  by  the  comity  of  nations,  is  bound  to  respect." 

But  such  is  not  the  doctrine  of  the  British  courts.     They  hold  them- 


CONVENTION  WITH  GREAT   BRITAIN. 


207 


selves  bound,  by  the  comity  of  nations,  to  respect  both  slavery  and  the 
slave  trade;  and  they  uphold  and  sustain  it,  in  their  decisions,  where 
the  rights  of  other  nations  are  concerned. 

In  3  Barn.  <€•  Aid.  353,  Maddrazzo  v.  Willes,  Chief  Justice  Abbott 
says,  "it  is  impossible  to  say  that  the  slave  trade  is  contrary  to  the 
law  of  nations;"  and  Lord  Stowell  says,  in  Le  Louts,  2  Dodsons 
Admiralty  Reports,  210,  "that  the  slave  trade  is  not  piracy  or  crime 
by  the  law  of  nations,  and  is  therefore  not  a  criminal  traffic  by  such 
law;  and  every  nation,  independent  of  treaty  relations,  retains  a 
legal  right  to  carry  it  on." 

Other  grounds  and  arguments  have  been  presented  by  counsel,  but 
they  are  substantially  included  in  those  already  named.  These  points 
have  been  accompanied  by  numerous  citations  of  authorities.  These 
citations,  however,  consist  of  decisions  applicable  to  English  citizens, 
or  to  persons  voluntarily  subjecting  themselves  to  English  jurisdiction, 
and  therefore  are  not  applicable  to  the  case  under  consideration.  In- 
'  deed,  the  argument  admits  the  distinction  we  take,  and  concedes  that 
vessels,  driven  into  harbor  by  distress  or  disaster,  are  exempted  from 
the  ordinary  jurisdiction  of  municipal  law.  It  denies,  however,  that 
slaves  on  board  such  vessels  are  included  in  such  exemption,  on  account 
of  the  passage  of  tlie  act  of  3  <t'  4  Win.  IV,  cli.  73 ;  and  to  this  single 
point  the  argument  seems  to  be  practically  reduced. 

I  shall  now  proceed,  as  I  proposed,  to  state  my  views  as  to  the 
principles  of  international  law  applicable  to  cases  of  this  description. 
They  are — 

I.  That  each  country  is  entitled  to  the  tree  and  absolute  right  to 
navigate  the  ocean,  as  the  common  highway  of  nations;  and,  while 
in  the  enjoyment  of  thi  right,  retains  over  its  vessels  the  exclusive 
jurisdiction  of  its  own  laws. 

II.  That  a  vessel,  compelled  by  stress  of  weather  or  other  unavoid- 
able necessity,  has  a  right  to  seek  shelter  in  any  harbor,  as  incident 
to  her  rigid  to  naoujaie  the  ocean,  until  the  danger  is  past  and  she 
can  proceed  again  in  safety. 

III.  That  the  enjoyment  of  such  shelter,  being  incident  to  the  right  to 
navigate  the  ocean,  carries  with  it  the  rights  of  the  ocean,  so  far  as  to 
retain  over  the  vessel,  cargo,  and  persons  on  board,  the  jurisdiction  of 
the  laws  of  her  country. 

IV.  That  the  act  of  3  <i-  4  Wm.  IV,  ch.  To,  abolishing  slavery  in 


i:  f 


208 


ADJUSTMENT   OF  CLAIMS  UNDER   THE 


Great  Britain  and  her  dominions,  could  not  overrule  the  rights  of 
nations  as  laid  down  in  these  propositions. 

It  will  be  perceived  that  this  chain  of  argument  is  based  on  funda- 
mental rights  of  nations.  Much  has  been  said,  in  the  argument  of 
this  case,  as  to  rights  of  persons;  but  it  is  apparent  that  the  preser- 
vation of  these  rights  must  depend  mainly  on  the  agency  of  nations. 
Tliey  constitute  organizations,  designed,  in  the  economy  of  Providence, 
for  the  security  of  man  in  a  state  of  society.  The  preservation  there- 
fore of  national  rights,  as  the  best  constituted  means  for  individual 
protection,  cannot  be  too  highly  regarded,  I  shall  briefly  advert  to 
some  of  these  rights.  •  - 

One  of  the  absolute  rights  of  nations  is,  that  they  shall  all  be  re- 
garded on  terms  of  perfect  equality  with  each  other.  This  must  be  so, 
otherwise  the  rights  of  a  nation,  as  such,  would  vary  with  its  extent 
or  power.  But  the  rights  of  8pain  are  now  the  same  as  when  she 
governed  three-fourths  of  the  American  continent,  and  put  forth  her 
original  boast,  that  her  morning  roll-call  was  caught  up  from  one 
military  station  to  another,  and  ran  on,  with  the  sun,  around  the 
globe. 

Another  of  the  absolute  righs  of  nations  is,  tliat  each  nation  must 
work  out  its  own  internal  reforms,  and  establish  its  own  system  of 
internal  policy,  without  the  interference  of  any  other  power.  Its  gov- 
ernment may,  as  its  people  elect,  be  based  on  hereditary  right  or  uni- 
versal suffrage  ;  its  religion  may  be  Christian,  Mahomed  an,  or  Pagan  ; 
the  marriage  relation  may  include  two  persons  or  more  ;  there  may  be 
subordination  of  caste,  or  rank,  or  slavery;  but,  however  these  institu- 
tions or  relations  may  be  constituted,  no  one  nation  has  a  right  to  in- 
terfere with  or  control  another  in  these  respects,  or  in  any  other,  so 
long  as  such  states  keep  within  the  recognized  principles  of  the  law  of 
nations. 

Another  of  the  essential  rights  of  nations  is,  the  free  use  of  the 
common  means  granted  ])y  nature  for  commercial  intercourse  with  its 
own  citizens  and  other  nations ;  or,  in  other  words,  the  free  riglit 
to  navigate  the  ocean.  No  national  riglit  is  more  important  than 
this. 

This  proposition,  which  Iliavelaid  down  as  the  first  ground  on 
^vliicli  tliis  claim  rests,  is  stated  as  follows: 

I,  That  each  country  is  entitled  to  the  free  and  absolute  right  to 


CONVENTION   WITH   GREAT   BRITAIN. 


209 


ghts  of 

I  funda- 
ment of 

preser- 
aations. 
k^idence, 
n  there- 
iiridual 
dvert  to 

II  be  re- 
st be  80, 
8  extent 
hen  »he 
orth  her 
Vom  one 
und  the 

on  must 
jrstem  of 

Its  gov- 
b  or  uni- 

Pagan ; 

may  be 

institu- 
lit  to  in- 
)ther,  so 

e  law  of 

|e  of  the 
with  its 
ee  rig] it 
xiit  than 

jund  on 


right  to 


navigate  the  ocean  as  the  common  highway  of  nations,  and  while  in 
tlie  enjoyment  of  this  right  retains  over  its  vessels  the  exclusive  juris- 
diction of  its  own  laws. 

The  Emperor  Antoninus  said,  ''though  he  was  the  lo'  '  of  the  world, 
the  law  only  was  the  ruler  of  the  sea. ' '  • 

Grotius  says,  "that  the  sea,  whether  taken  as  a  whole  or  as  to  its 
principal  jtarts,  cannot  become  property.  For  the  magnitude  of  the 
sea  is  so  great,  it  is  sufficient  for  all  peoples'  use.  There  is  a  natural 
reason  which  prevents  the  sea  from  being  made  property,  merely  be- 
cause occupation  can  only  be  applied  to  a  thing  which  is  bounded.  Now 
fluids  are  unbounded,  and  cannot  bo  occupied,  except  as  they  are  con- 
tained in  something  else,  as  lakes  and  ponds  are  occupied,  and  rivers  as 
far  as  their  banks  ;  but  the  sea  is  not  contained  by  the  land,  being  equal 
to  the  land,  or  greater,  so  that  the  ancients  say  the  land  is  bounded  by 
the  sea." — (Grotiits,  BooJe2,ch.2,sec.3.) 

Vattel  says,  "that  the  right  of  navigating  the  open  sea  is  a  right 
common  to  all  men ;  and  the  nation  that  attempts  to  exclude  another 
from  that  advantage,  does  her  an  injury,  and  furnishes  her  with  suffi- 
cient grounds  for  commencing  hostilities."  And  "that  nation  which 
arrogates  to  itself  an  exclusive  right  to  the  sea  does  an  injury  to  all 
nations;  and  they  are  justified  in  •forming  a  general  combination 
against  it,  in  order  to  repress  such  an  attempt." — (Vattel,  Book  1, 
rh.2S,secs.  282  rf' 283.) 

Indeed,  the  free  riglit  of  each  nation  to  navigate  the  ocean  is  now 
nowhere  contested ;  und  it  carries  with  it,  as  a  necessary  result,  the 
exclusive  jurisdiction  on  the  high  seas  of  the  laws  of  each  country 
over  its  own  vessels. 

Phillimore,  in  his  recent  work  on  Interna fhnal  Laiv,  vol.  i.  p.  352, 
.says,  that  ' '  all  authorities  combine,  with  tlie  reason  of  the  thing,  in  de- 
claring that,  for  all  oflenccs  on  the  high  seas,  the  territory  of  the  coun- 
try to  wliich  tlie  vessel  belongs  is  to  be  considered  as  the  locality  of 
tlRMiU'enco,  and  that  the  ofiender  must  be  tried  bv  the  tribunals  of  his 
country ;"  and  "  it  matters  not,"  he  says^  "whether  the  injured  person, 
(ir  the  otTender,  belong  to  a  country  other  than  that  of  the  vessel." 
The  rule  is  applicable  to  all  on  board.  It  is  further  well  declared, 
that  this  right  to  navigate  the  ocean  is  a  national  one,  and  cannot  be 
exercised  by  an  individual  except  under  the  patronage  and  protection 
of  his  government.     Thus  it  is  holden,  "that  every  ship  is  bound  to 

14 


I 


'ii> 


\i 


■,!i 
I 


1!: 


i  i 


f 


Hi 


'4   ? 


'    *  1 


210 


ADJUSTMENT   OF  CLAIMS   UNDER   THE 


I', 


carry  a  flag,  and  to  have  on  board  ship's  papers,  indicating  to  what 
nation  it  belongs,  whence  it  sailed,  and  whither  it  is  bound,  under  the 
penalty  of  being  treated  as  a  pirate." — (1  Phill.  Internat.  Law,  216.) 

A  vessel,  wherever  she  is  borne  on  the  high  seas,  is  bound  therefore 
to  hjive  a  national  character,  and  is  part  and  ]>arcel  of  a  recognized 
government. 

It  is  contended — 

II.  That  a  vessel  compelled  by  stress  of  weather,  or  other  unavoi- 
dable necessity,  has  a  right  to  seek  shelter  in  any  harbor,  as  incident 
to  her  right  to  navigate  the  ocean,  until  the  danger  is  past,  and  she  can 
proceed  again  in  safety . 

This  position  I  propose  to  sustain  on  three  grounds  :  By  authority ; 
by  the  concession  of  the  British  government  in  similar  cases  ;  and  by 
its  evident  necessity,  as  parcel  of  the  free  right  to  navigate  the  ocean, 
aiid  therefore  a  necessary  incident  of  such  right. 

1.  The  effect  of  stress  of  weather  in  exempting  vess  ^'is  from  liabilities 
to  local  law,  when  they  are  driven  by  it  within  th«.i  ordinary  jurisdic- 
tion of  another  country,  is  well  settled  by  authority  In  various  classes 
of  cases,  viz ;  in  reference  to  the  blockade  of  harbors  and  coasts  ;  of 
prohibited  intercourse  of  vessels  between  certain  jjorts  that  are  subject 
to  quarantine  regulations ;  intcl-course  between  certain  countries,  or 
sections  of  countries,  which  is  interdicted  from  motives  of  mercantile 
policy ;  and  in  cases  of  liability  to  general  c  istoms  duties. — (Authorities 
on  these  points  will  be  found  in  The  Frederick  Molke,  1  Eoh.  Hep.  87  ; 
The  Columbia,  do.  156  ;  The  Juffrotv  Maria  Schroeder,  3  Hob.  153  ; 
The  Hofnung,  6  do.  116  ;  The  Mary,  1  Gall.  206  ;  Prince  v.  U.  S.,2 
Gall.  204  ;  Peisch  v.  Ware,  4  Cranch,  347  ;  Lord  liaymond,  388,  501; 
Reeves's  Law  of  Shipping,  203  ;  The  Francis  and  Eliza,  8  Wheaton, 
398  ;  Sea  Laics,  Arts.  29,  30  (&  31  ;  and  The  Gertrude,  3  Story's 
Rep.  68.) 

In  the  last  named  case,  the  learned  judge  remarks,  "that  it  can 
only  be  a  people  who  have  made  l)Ut  little  i)rogress  in  civilization,  that 
would  not  permit  foreign  vessels  to  seek  safety  in  tlieir  i)orts,  wliou 
driven  there  by  stress  of  weatlier,  excejjt  under  the  charge  of  paying 
impost  duties  on  tlieir  cargoes,  or  on  penalty  of  confiscation,  where 
the  cargo  consisted  of  i)rolnbitcd  goods. ' '  (See  also  Kent's  Commentaries 
145,  and  authorities  there  cited.) 

The  authority  of  writers  on  international  law  is  also  directly  in 
point.     Vattel  holds  to  the  free  right  of  all  nations  to  the  use  of  the 


0 
C( 


til 
er 


g  to  what 
under  the 
mo,  216.) 
,  therefore 
•ecognized 


er  II n avoi- 
ds incident 
id  she  can 

authority ; 
!8 ;  and  by 
the  ocean, 

I  liabilities 

y  jurisdic- 

0U8  classes 

coasts  ;  of 

are  subject 

untries,  or 

Imercantile 

uthorities 

Hep.  87 ; 

\liob,  153 ; 

.  U.S., 2 

388,  501; 

Wheafo'n , 

3  Slori/'s 

Ihat  it  can 
Ition,  that 
[rts,  wlion 
)f  paying 
)n,  where 
\menfaries 


CONVENTION   WITH  GREAT   BMITi 


211 


irectly  in 
ise  of  the 


ocean,  with  the  exception  that  a  portion  of  the  «^n,  imn  liately 
contiguous  to  the  land,  is  subject  to  each  government  ior  the  puipoHi 
essential  to  its  protection.  Even  here,  however,  ho  says :  Other  iia 
tions  have  a  right  of  passage  through  such  ])ortions  of  the  sea  when 
not  liable  to  suspidon,  and  in  cases  of  necessity  the  entire  right  ot 
the  government  ceases ;  as,  for  instance,  where  a  vessel  is  obliged  to 
enter  a  road,  in  order  to  shelter  herself  from  a  tempest.  In  such  case 
she  may  enter  wherever  she  can,  provided  she  cause  no  damage  or 
repair  any  damage  done.  This  is  a  remnant  of  his  primitive  freedom, 
of  which  no  man  can  be  supposed  to  have  divested  himself;  and  the 
vessel  may  lawfully  enter,  in  spite  of  such  foreign  government,  if  she 
IS  unjustly  refused  admission." — {Vattel,  Book  1,  ch.  23,  sec.  288.) 

Again,  he  says,  in  another  section,  "a  vessel  driven  by  stress  of 
weather,  has  a  right  to  enter,  even  by  force,  into  a  foreign  port." — 
{Vattel,  Book  2,  ch.  9,  sec.  123  ;  Pufendorf,  Book  3,  ch.  3,  sen.  8.) 

Vattel  thus  considers  this  an  absolute  right,  that  may  be  asserted  at 
any  hazard ;  and  not  a  right  resting  in  comity,  or  dependent  on  license, 
tliat  may  be  modified  or  revoked.  In  the  resort  to  force  for  the  preser- 
vation of  such  rights,  he  is  sustained  by  Phillimore  and  other  modern 
writers  on  international  law,  who  hold  that  the  violation  of  rights, 
sfricti  Juris,  or  the  absolute  rights  of  nations,  "may  be  redressed  by 
forcible  means. ' ' — (PhiU.  International  Laio,  sec.  143.)  Grotius,  Puffen- 
(lorf,  and  other  writers  lay  down  as  a  general  principle  the  rule  which 
is  applicable  to  this  case :  "  That,  in  extreme  necessity,  the  primitive 
right  of  using  things  revives,  as  if  they  had  remained  in  common  ;  and 
that  such  necessity  in  all  laws  is  excepted." — (Grotius,  Book  2,  ch.  2, 
sec.  6 ;  Pufendorf,  Book  2,  ch.  6,  sees.  5  and  6;  Vattel,  Book,  2,  ch.  9, 
sees.  119  and  120;  Bowyer's  Commentaries  on  Public  Law,  p.  357.) 

2.  The  principles  of  law  laid  down  by  these  various  writers  are  also 
sustained  by  admissions  of  the  British  government,  and  by  the  allow- 
ance and  adjustment  of  claims  of  precisely  the  same  character  as  the 
one  before  us. 

In  the  correspondence  between  the  two  governments  in  reference  to 
this  claim,  it  is  admitted  by  Lord  Palmerstou,  "that  where  a  ship, 
containing  irrational  animals  or  things,  is  driven  by  stress  of  weather 
into  a  foreign  port,  it  would  be  highly  unjust  that  the  owner  should 
be  stripped  of  what  belongs  to  him,  through  the  application  of  the 
municipal  law  of  the  State  to  which  ho  had  not  voluntarily  submitted 
himself." 


!j 


'  a 


n 


m 
m 

m 
n 


m 


212 


ADJUSTMENT   OF   CLAIMS   UNDER   THK 


This  18  an  tulmission  of  tho  luRh  injuHtice  of  noi/in}?  nil  pioperty, 
except  inopeity  in  Hlnves ;  but  the  British  government  have  in  other 
cases  conceded  tho  application  of  tho  same  principle  to  slaves. 

This  was  done  in  tho  case  of  the  Cotnet,  to  which  T  have  heforo 
alluded,  which  was  similar,  m  all  essential  particulars  to  this  case. 
Tho  Comet  sailed  from  the  District  of  (Jolumbia  in  1830,  for  New 
Orleans,  having  a  number  (»f  slaves  on  board  ;  she  was  stranded  on 
one  of  the  false  keys  of  the  Bahamas,  and  the  crew  and  persons  on 
board  were  taken  by  the  wreckers  into  the  port  of  Nassau,  where  tlip 
slaves  were  seized  by  tho  authorities  of  the  island  and  liberated. 

The  case  of  the  Kncomiiuu  is  of  the  same  description.  »Sho  sailed 
from  Charleston  in  1834,  for  New  Orleans,  with  slaves  on  board; 
was  stranded  in  the  same  place,  and  tho  crew  and  persons  on  l)oard 
were  taken  into  the  same  port,  where  the  slaves  wore  seized  and  libe- 
rated by  tho  authorities. 

Claim  was  presented  for  redress  for  these  injuries,  and  after  full  dis- 
cussion of  tho  subject,  compensation  was  made  by  the  British  govern- 
ment for  tho  slaves  thus  liberated ;  and  this  compensation  was  rendered 
solely  on  tho  principle  now  contended  for,  that  where  a  vessel  is  forced 
by  stress  of  weather  into  a  foreign  port,  she  carries  with  her  her  rights, 
existing  on  the  high  seas,  as  to  the  vessel,  property,  and  personal  rela- 
tions of  those  on  board,  as  sustained  by  the  laws  of  her  own  country. 
That  such  was  the  ground  on  which  these  claims  were  allowed  and 
paid  is  manifest,  because  they  were  slaves  of  a  foreign  country,  brought 
within  the  limits  of  the  British  government,  but  not  held  there  in 
bondage  by  any  British  law. 

So  far  was  this  from  being  the  case,  that  the  statute  of  5  Geo.  IV,  d>. 
1.13,  then  in  force,  expressly  prohibited  bringing  slaves  from  other 
countries  into  places  within  British  jurisdiction,  or  retaining  them 
there,  under  heavy  jtenaltios  :  and  all  persons  offending  against  this 
law  were  declared  to  be  felons,  and  were  liable  to  be  transported  be- 
yond sea,  or  to  be  confined  and  kept  at  hard  labor  for  a  term  of  not 
less  than  three,  nor  more  than  five  years. 

There  was,  then,  no  British  law  in  existence  by  which  these  slaves 
could  be  holden  ;  and  the  claim  to  compensation  rested  solely  on  the 
laws  of  the  United  States,  which  were  holden  to  be  rightfully  opera- 
tive, and  in  force  against  tho  persons  claimed  as  slaves,  under  the 
pircumstances  in  which  the  vessel  was  driven  into  port. 


\ 


% 


til 
t(| 

T 
ail 
till 
ul 


CONVENTION   WITU    ORKAT   BRITAIN. 


213 


roperty, 
in  other 

0  before 

Ill's    CftNC. 

for  New 
indod  oil 
rsons  oil 
rhero  tlio 
ed. 
ho  sailed 

1  board ; 
on  hoard 
anil  libe- 

r  full  dis- 
h  govern - 
5  rendered 
1  is  forced 
ler  rights, 
onul  rela- 
i  country, 
wed  and 
,  brought 
there  in 

n.  IV,  v/>. 
loni  other 
ing  them 
linst  this 
liorted  be- 
rni  of  not 

[.se  slaves 
ly  on  the 
lly  opera- 
Inder  the 


This  result  it  is  impossible  to  avoid,  and  the  principle  asserted  is 
fully  sustained  by  those  cases.  I  am  aware  that  the  ilaim  of  the  En- 
ti'rprizc,  which  was  pending  at  the  same  time,  was  disallowed,  on  the 
ground  of  a  subsetjiient  change  In  the  local  law  in  reference  to  slavery. 
The  slaves  of  the  (5omet  and  Kncomiiini,  however,  were  not  holden  by 
any  of  the  local  laws  of  the  island,  but  wore  there  in  violation  of 
them.  The  repeal  of  such  local  law,  therefore,  can  in  no  manner 
ad'ect  tiio  principle  of  the  decision. 

;{.  A  further  reason  assigned  for  the  point  now  under  consideration 
is  its  evident  necessity  as  a  part  of  the  free  right  of  each  nation  to 
navigate  the  ocean,  and  as  a  necessary  incident  of  such  right. 

Writers  on  public  law,  we  have  seen,  assert  a  right  to  enter  a  for- 
eign port,  when  driven  there  by  stress  of  weather,  on  the  ground  of 
necessity.  This  necessity  arises  from  jierils  on  the  deep,  to  which  all 
navigation  on  the  ocean  is  subject ;  and  if  such  i)erils  from  this  cau.se 
•X^VQ  the  right  of  refuge,  it  becomes  necessarily  what  I  claim  for  it — 
an  incidental  right  to  the  navigation  of  the  ocean. 

It  is  a  necessity  essential  to  the  enjoyment  of  a  clear  and  undeniable 
1  ight ;  and  whatever  is  essential  to  the  enjoyment  of  a  right,  or  is  a 
necessary  means  of  its  use,  is,  ex  vi  termini,  a  necessary  incident  of 
such  right. 

This  connexion  I  have  not  seen  adverted  to ;  and  it  is  not  laid  down 
))y  the  writers  cited,  as  it  was  not  essential  to  their  purpose  to  follow 
out  the  origin,  or  causes  from  which  the  necessity  arose.  It  is  clearly 
embraced,  however,  in  their  propositions,  and  is  important  in  this 
case,  as  it  determines  the  true  character  of  the  rights  arising  from  this 
necessity  in  a  manner  that  admits  of  no  question  or  controversy. 

The  claim  is  thus  an  incident  to  an  absolute  and  essential  right  of 
nations^  and  is  not  a  claim  to  the  mere  favor  of  any  people,  which 
tliey  may  give  or  deny  at  pleasure,  out  of  any  supposed  exclusive 
jurisdiction  of  their  own. 

All  incidental  rights  are  based  on  necessities  arising  from  the  prior 
and  original  right.  A  right  to  the  end  uniformly  carries  with  it  a 
right  to  the  means  requisite  to  attain  that  end,  or,  as  is  stated  by  Mr. 
Wheaton,  "  draws  after  it  the  incidental  right  of  using  all  the  means 
Avhich  are  necessary  to  the  secure  enjoyment  of  the  thing  itself." — 
(Wheat.,  Part  2,  ch.  4,  sees.  13  d  18.) 

Further,  incidental  rights,  of  a  similar  character  and  attended  with 
precisely  the  same  result,  as  to  entry  within  the  territorial  jurisdiction 


214 


ADJUSTMENT    OP   CLAIMS   UNDER   THE 


of  another  government  have  heen  asserted  in  connexion  w'th  the  right 
to  navigate  the  ocean,  and  are  holden  as  undoubted  law.  Thus  the 
right  to  navigate  the  ocean  is  holden  to  give  the  right,  as  incidental 
to  it,  to  persons  inhabiting  the  upper  sections  of  navigable  rivers  to 
pass  by  such  rivers  through  the  territory  of  other  governments  in 
order  to  reach  the  ocean,  and  thus  participate  in  the  commerce  of  the 
world. 

Great  Britain  claimed  and  exercised  this  right  with  all  its  incidents 
against  Spain  in  the  navigation  of  the  Mississippi;  and  when  a 
Spanish  governor  undertook  at  one  time  to  forbid  it,  and  cut  loose 
vessels  fastened  to  the  shores,  it  is  asserted  by  Mr.  Wheaton  that  a 
British  vessel  moored  itself  opposite  New  Orleans,  and  set  out  guards, 
with  orders  to  fire  on  persons  who  disturbed  her  moorings.  The  gov- 
ernor acquiesced  in  the  right  claimed,  and  it  was  afterwards  exercised 
without  interruption. — {Wheaton,  Part  2,  ch.  4,  sec.  18;  Grotius,  Bool: 
2,  ch.  2,  sees.  12  <fc  18;  ck.  3,  sees.  7-12;  Vattel,  Book  2,  cJi.  9,  sees. 
126-130;  ch.  10,  sees.  132-134;  Pufendorf,  Book'S,  ch.  3,  sees.  3-6.) 

The  right  to  the  use  of  navigable  rivers,  further,  is  holden  to  draw 
after  it,  as  a  means  necessary  to  its  enjoyment,  the  right  to  moor  ves- 
sels to  the  banks  of  such  rivers  within  another  country,  and  the 
very  right  we  here  contend  for — "  to  land  in  case  of  distress,"  and 
where  a  vessel  is  damaged  to  deposit  her  cargo  on  the  shore  until  the 
vessel  can  be  repaired,  and  it  can  proceed  in  safety. — (Wheaton' s 
Internaf.  Laiu,  Part  2,  ch.  4,  sees.  13-18 ;  Grotius,  Book  2,  ch.  2,  sees. 
11-15 ;  Pufendorf,  Book  3,  ch.  3,  sees,  3-8;  Vattel,  Book  1,  ch.  9,  sec. 
104;  Book  2,  ch.  9,  sees.  123-139.) 

It  is  holden  also  in  civil  law  that  the  use  of  the  shores  of  navigable 
rivers  and  of  the  ocean  is  incident  to  the  use  of  the  water. — (Inst., 
Book  2,  title  1,  sees.  1-5.) 

For  the  convenient  use  of  navigable  rivers  by  nations  bordering 
upon  them,  treaties  have  been  usually  made,  specifying  rules  and  regu- 
lations in  reference  to  their  use ;  but  it  is  well  settled  that  such  trea- 
ties recognize  and  sustain  the  right  of  use,  and  do  not  originate  it. 

It  may  be  said  that  the  right  of  shelter  from  the  land,  which  is 
claimed  as  an  incident  to  the  use  of  the  ocean,  cannot  be  set  up  at  the 
same  time  with  the  right  over  the  ocean,  which  is  admitted  to  a  cer- 
tain extent  as  incident  to  the  land.  But  these  rights  do  not  conflict 
with  each  other.     The  right  of  a  State  bordering  on  the  ocean  to  a 


if  i| 

I 


CONVENTION   WITH   GREAT  BRITAIN. 


215 


the  right 
Thus  the 
incidental 
rivers  to 
ments  in 
•ce  of  the 

incidents 
I  when  a 
cut  loose 
»n  that  a 
it  guards, 
The  gov- 
exercised 
fius,  Book 
h.  d,  sees. 
'CCS.  8-6.) 
n  to  draw 
moor  ves- 
,  and  the 
ess,"  and 
until  the 
Vheaton's 
h.  '2,,  sees. 
h.  9,  sec, 

lavi  gable 
. — {Inst., 

lordering 
md  regu- 
uch  trea- 
ate  it. 
which  is 
up  at  the 
to  a  cer- 
it  conflict 
cean  to  a 


given  extent  over  the  waters  immediately  adjoining  attaches  for  cer- 
tain fiscal  purposes  and  purposes  of  protection.  But  the  jurisdiction 
thus  obtained  is  by  no  means  exclusive.  Sovereignty  docs  not  neces- 
sarily imply  all  power,  or  that  there  cannot  co-exist  with  it,  within 
its  own  dominions,  other  independent  and  co-equal  rights. 

Indeed,  the  cxcejition  taken  furnishes  a  strong  argument  in  favor  of 
the  principle  we  contend  for,  because  the  same  rule  of  justice  that 
gives  for  certain  purposes  jurisdiction  over  the  waters,  as  incident  to 
the  use  of  the  land,  extends,  for  like  reasons,  aright  over  the  land  for 
temporary  use  and  shelter,  as  incident  to  the  use  of  the  ocean.  The 
rule  operates  with  equal  validity  and  justice  both  ways,  and  its  appli- 
cation in  the  one  case  sustains  and  justifies  it  in  the  other.  If  either 
right  must  give  way,  there  seems  to  be  no  good  reason  why  the  older 
and  better  right  of  the  nations  to  the  free  navigation  of  the  ocean, 
with  its  incidents,  should  be  surrendered  to  the  exclusive  claims  of 
any  single  nation  on  its  borders.  But  this  is  not  necessary,  as  both 
rights  in  their  full  perfection  may  exist  together. 

I  now  come  to  the  third  proposition. 

III.  That  as  the  right  of  shelter,  by  a  vessel,  from  storm  and  inevita- 
ble accident,  is  incident  to  her  right  to  navigate  the  ocean,  it  neces- 
sarily carries  with  it  her  rights  on  the  ocean,  so  far  as  to  retain  over 
the  vessel,  cargo,  and  persons  on  board  the  jurisdiction  of  the  laws  of 
her  country. 

This  is  clearly  the  necessary  result  of  the  prior  position.  It  is  laid 
down,  as  an  elementary  proposition,  by  Vattel,  "that  where  an  obliga- 
tion gives  a  right  to  things  without  which  it  cannot  be  fulfilled,  each 
absolute,  necessary,  and  indispensable  obligation  produces,  in  this  man- 
ner, rights  equally  absolute,  necessary,  and  indefeasible." — {Vattel, 
Book  2,  ch.  9,  sec.  116.) 

Wherever  the  use  of  a  minor  sheet  of  water  may  be  claimed,  as  inci- 
dent to  that  of  a  larger,  it  is,  while  in  use,  a  substitute  for  it^  and 
draws  after  it,  as  of  course,  all  the  rights  and  privileges  connected 
with  the  enjoyment  of  the  principal  right  itself. 

The  entrance  of  a  vessel  into  a  foreign  harbor,  when  compelled  by 
stress  of  weather,  is  a  matter  of  right.  She  goes  there  on  a  highway, 
which,  for  the  time  being,  is  her  own.  She  is,  as  when  on  the  ocean, 
part  and  parcel  of  the  government  of  her  own  country,  temporarily 
forced,  by  causes  beyond  her  control,  within  a  foreign  jurisdiction. 


^ 


■:  <  ^; 


I  ]: 


i 


216 


ADJUSTMENT    OP  CLAIMS  UNDER   THE 


Her  presence  there,  under  such  circumstances,  need  not  excite  any 
more  feeling  tlian  when  on  the  ocean.  It  is  a  i)art  of  her  voyage, 
temporarily  interrupted  by  the  viccissitudes  of  the  sea,  but  carrying 
with  it  tlie  protection  of  the  sea;  and  the  property  and  relations  of  the 
persons  on  board  cannot,  in  such  case,  be  interfered  with  by  the  lo- 
cal law,  so  as  to  obstruct  her  voyage  or  change  such  relations,  so  long 
as  they  do  not  conflict  with  the  law  of  nations. 

These  positions  do  not  seem  to  be  contested,  as  a  general  rule  ;  but 
it  is  said  tliat,  since  the  abrogation  of  slavery  by  England,  the  prin- 
ciples thus  laid  down  will  not  apply  to  slave  property,  and  this  brings 
me  to  the  fourth  point  to  be  considered. 

IV.  That  the  act  of  3  c5  4  Wm.  IV,  ch.  73,  abolishing  slavery  in 
Great  Britain  and  her  dependencies,  could  not  have  the  effect  to  over- 
rule the  rights  laid  down  in  the  foregoing  propositions. 

It  lias  been  contended  that  the  law  abolishing  slavery  overruled  the 
law  of  nations,  on  the  ground  that  slavery  is  contrary  to  natural 
right,  and  is,  in  fact,  beyond  the  protection  of  all  law.  Authorities 
have  been  cited  as  tending  to  sustain  this  doctrine,  going  back  to  the 
earliest  adjudged  case  in  France,  where  the  question  was  elaborately 
examined,  and  it  was  held  that  the  institution  of  slavery,  in  the  ab- 
sence of  specific  law,  could  not  be  sustained  under  any  subsisting 
usage  or  custom  of  that  country,  as  it  was  contrary  to  the  laws  of  na- 
ture and  humanity,  and  slaves  could  not  breathe  in  France. 

Long  after  this,  the  Somerset  case,  sustaining  the  same  principle, 
came  up  in  England,  and  from  that  time  this  has  been  considered  the 
leading  case  on  the  subject ;  and  the  declaration  founded  upon  it, 
"that  slaves  cannot  breathe  in  England,"  has  been  usually  regarded 
as  a  sentiment  peculiarly  applicable  to  British  soil  and  institutions. 

The  doctrine  of  the  Somerset  case,  and  the  expressions  of  numerous 
distinguished  English  and  American  jurists  sustaining  it,  including 
Chief  Justice  Marshall,  Mr.  Justice  Story,  and  Chief  Justice  Shaw, 
have  been  fully  cited  in  this  case,  "  that  slavery  is  against  the  law  of 
nature;"  "  has  no  foundation  in  no      -"1  or  moral  right ;"  "  is  odi- 


ous," &c. 


These  doctrines  are  not  novel  on  the  American  side  of  the  Atlantic. 

They  were  the  established  sentiments  there  a  century  before  the  revo- 

ution,  and  were  reiterated  again  and  again,  from  that  period  down  to 

the  time  of  the  separation  from  England,  in  constant  acts  of  the  colo- 


CONVENTION    WITH   GREAT   BRITAIN. 


217 


uial  legislatures,  an<l  in  constant  protests  against  the  importation  of 
slaves  into  the  colonies.  But  the  royal  colonial  governors  were  in- 
structed to  veto  all  sucli  acts,  and  the  institution  of  slavery  was  per- 
se veringly  forced  upon  America. 

I  see  no  occasion  to  dissent  from  the  full  effect  of  the  adjudications 
cited  or  the  sentiments  expressed  ;  but  they  do  not  settle  any  f[uestion 
of  international  right  arising  in  this  case,  or  define  any  line  of  limi- 
tation betwixt  conflicting  jurisdictions,  or  sustain  at  all  the  point  to 
which  they  are  cited,  that  slavery  cannot  subsist  by  valid  law. 

What  is  law  is  a  question  of  fact ;  and  though  its  original  institu- 
tion may  have  been  of  doubtful  morality  or  justice,  it  is  still  law.  It 
is  a  dangerous  doctrine  that  all  law,  not  originally  conceived  and  pro- 
mulgated in  abstract  rights  is  invalid,  or  is  to  be  instantly  overthrown. 

This  is  readily  shown  by  extending  the  inq^uiry  to  other  subjects. 
By  what  abstract  or  natural  right,  I  might  ask,  is  one  man  born  to 
rule  over  another,  or  one  set  or  class  of  men  by  birth  to  become  legis- 
lators for  others  ?  There  is  no  such  natural  inequality  ;  there  is  no 
principle  of  abstract  right  to  sustain  such  an  order  of  things.  But 
we  must  deal  with  institutions  as  they  are,  and  relations  as  they  sub- 
sist. Reforms  must  advance  gradually.  The  time  will  doubtless 
come  when  all  things  not  founded  in  right  will  cease ;  when  there 
will  be  no  privileged  classes  by  birth  ;  no  compulsory  support  of  one 
religious  sect  by  another,  to  which  it  is  conscientiously  opposed  ;  no 
sales  of  religious  presentations  ;  no  slavery. 

But  these  Gordian  knots,  that  have  been  compacted  for  centuries, 
and  are  intertwined  and  bound  up  in  all  the  relations  of  men,  are  not 
to  be  severed  at  a  blow.  Each  nation  must  deal  with  them,  in  its 
own  time  and  manner.  Such  measures  of  reform  cannot  be  promoted 
by  the  illegal  interference  of  one  nation  with  another,  or  by  forcing 
upon  shipwrecked  individuals,  temporarily  thrown  within  the  limits  of 
another  land,  laws  in  conflict  with  their  own  rights  ot  self-govern- 
ment, and  the  established  relations  of  their  country. 

These  views  are  sustained  by  the  concurrence  of  some  of  the  ablest 
English  jurists,  and  the  settled  adjudications  of  English  law.  Thus 
it  has  been  holden,  though  the  slave  trade  is  declared  to  be  contrary 
to  the  principles  of  justice  and  humanity,  no  state  has  a  right  to  con- 
trol the  action  of  any  other  government  on  the  subject,  {The  Amedie, 
IDod.  84  n;   The  Fortuna,  1  Dod.  81;  The  Diana,  1  Dod.  101;) 


218 


ADJUSTMENT  OF  CLAIMS   UNDER   THE 


and  that  no  nation  can  add  to  the  law  of  nations  by  its  own  arbitrary 
ordinances,  {Pollard  v.  Bell,  8  Term  Hep,  434  ;  2  Park  on  Insur- 
ance, 731 ;)  or  privilege  itself  to  commit  a  crime  against  the  law  of 
nations  by  municipal  regulations  of  its  own,  (Le  Louis,  2  Dod.  251.) 

It  is  also  holden  that  a  foreigner,  in  a  British  court  of  justice,  may 
recover  damages  in  respect  of  a  wrongful  seizure  of  slaves. — {Mad- 
drazzo  v.  Willes,  3  Barn,  d-  Aid.  353  ;  The  Diana,  1  Dod.  95.)  And 
in  the  case  of  Le  Louis,  2  Dod.  238,  above  cited,  Sir  William  Scott 
(Lord  Stovrell)  says,  though  the  slave  trade  is  unjust  and  condemned 
by  the  laws  of  England,  it  is  not  therefore  a  criminal  traffic  by  the 
laws  of  nations;  and  every  nation,  independent  of  its  relinquishment 
by  treaty,  has  a  legal  right  to  carry  it  on.  "No  one  nation,"  he 
says,  "  has  a  right  to  force  the  way  to  the  liberation  of  Africa  by 
trampling  on  the  independence  of  other  states  ;  or  to  procure  an  emi- 
nent good  by  means  that  are  unlawful ;  or  to  press  forward  to  a  great 
principle  by  breaking  through  other  great  principles  that  stand  in  the 
way." 

And  when  pressed  in  the  same  case  with  tlie  inc^uiry,  "  What 
would  be  done  if  a  French  ship  laden  with  slaves  should  be  brought 
into  England?"  he  says,  "I  answer  without  hesitation,  restore  the 
possession  which  has  been  unlawfully  divested  ;  rescind  the  illegal 
act  done  by  your  own  subjects,  and  leave  the  foreigner  to  the  justice 
of  his  own  country. ' ' 

The  doctrine  that  slavery  cannot  be  sustained  by  valid  law  must  be 
set  at  rest  by  these  authorities. 

There  is  but  one  other  ground  on  which  it  can  be  contended  that 
the  act  of  3  cfc  4  Will.  IV,  cli.  73,  overrules  the  principles  I  have  laid 
down,  and  that  is  that  the  municipal  law  of  England  is  paramount  to 
the  absolute  rights  of  other  governments  when  they  come  in  conflict 
with  each  other.  Such  a  position  virtually  abolishes  the  entire  code 
of  international  law.  If  one  state  can  at  pleasure  revoke  such  a  law, 
any  other  state  may  do  the  same  thing,  and  the  whole  system  of  in- 
ternational intercourse  becomes  a  mere  matter  of  arbitrary  will,  and 
of  universal  violence. 

It  appears  to  me,  from  a  full  examination  of  the  law  applicable  to 
the  case,  that  the  Enterprize  was  entitled,  under  the  immediate  perils 
of  her  condition,  to  refuge  in  the  Bermudas;  that  she  had  a  right  to 
remain  there  a  sufficient  time  to  accomplish  the  purposes  of  her  entry, 


an 
en 
of 
thi 
of 

sic 
pr 
th( 


CONVENTION   WITH   GREAT  BRITAIN. 


219 


and  to  depart  as  she  came  ;  that  the  local  authorities  could  not  legally 
enter  on  board  of  her  for  the  purpose  of  interfering  with  the  condition 
of  persons  or  things  as  established  by  the  laws  of  her  country;  and 
that  such  an  exercise  of  authority  over  the  commerce  and  institutions 
of  a  friendly  state  is  not  warranted  by  the  laws  of  nations. 

For  tliese  reasons  I  am  of  opinion  that  the  claim  before  the  commis- 
sion is  sustained,  and  that  the  owners  of  slaves  ou  board  the  Enter- 
prize  are  entitled  to  compensation  for  the  illegal  interference  with 
them  by  the  authorities  of  Bermuda. 


I 


i^ 


<m 


!i 


t ' 


f- 


220 


ADJUSTMENT   OF   CLAIMS   UNDER   THE 


Hornby,  British  Commissioner : 

The  facts  in  this  case  are  shortly  as  follows :  During  the  early  part 
of  the  year  1835,  the  American  hrig  ''Enterprize,"  liaving  on  hoard 
a  large  raimher  of  slaves  while  on  her  voyage  from  Alexandria,  in  the 
District  of  Columhia,  to  Charleston,  in  South  Carolina,  was  driven 
from  her  course  hy  prevailing  contrary  winds,  and  belny,  hy  the  delay 
thus  occasioned,  in  loanl  of  provisions,  put  into  the  port  of  Hamilton,  in 
the  Bermudas.  On  her  arrival  she  was  hoarded  by  the  colonial  authori- 
ties, and  taken  possession  of  on  the  ground  of  having  slaves  on  hoard. 
Possession,  however,  was  given  up,  on  the  authorities  being  informed 
of  the  circumstances  under  which  the  vessel  had  put  in. 

Before,  however,  the  ship  could  leave  the  harbor,  a  writ  of  habeas' 
corpus  was  obtained,  at  the  instance  of  an  association  of  free  blacks  in 
the  island,  and  served  upon  the  captain,  requiring  his  appearance  be- 
fore the  court,  and  the  production  of  the  slaves  still  remaining  on 
board.  Upon  the  argument  of  the  case,  the  court  declared  that  there 
was  no  law  authorizing  the  detention  of  the  slaves,  and  they  were 
accordingly  set  at  liberty. 

Under  those  circumstances  the  United  States  government  claim  com- 
pensation at  the  hands  of  the  British  government  in  respect  of  the  loss 
sustained  by  the  owners  of  the  slaves,  by  their  release,  basing  their 
demand  on  the  following  propositions  :*  "  That  a  vessel  on  the  high 
seas,  in  time  of  peace,  engaged  on  a  lawful  voyage,  is,  according  to 
the  law  of  nations,  under  the  exclusive  jurisdiction  of  the  State  to 
which  she  belongs;  and  that  if  such  vessel  is  forced  hy  stress  of  weather, 
or  unavoidable  circumstance,  into  the  port  of  a  friendly  power,  her 
country  in  such  case  loses  none  of  the  rights  appertaining  to  her  on 
the  high  seas,  either  over  the  vessel  or  the  personal  relations  of  those 
on  board." 

Mr.  Webster,  in  his  letter  to  Lord  Ashburton,  on  the  1st  of  August, 
1842,  states  the  second  of  these  propositions  in  somewhat  different 
language;  he  says  :  '•'  If  a  vessel  be  driven  by  weather  into  the  port 
of  another  nation,  it  would  hardly  be  alleged  by  any  one  that,  by  the 
mere  force  of  such  arrival  within  the  waters  of  the  State,  the  law  of 
that  State  would  so  attach  to  the  vessel  as  to  affect  existing  rights  of 


*  Unitod  States  Senate  Resolutions,  March,    840. 


her 


CONVENTION   WITH   GREAT  BRITAIN. 


221 


property  between  persons  on  board,  whether  arising  from  contract 
or  otherwise.  The  local  law  would  not  operate  to  make  tlio  goods  ot 
one  man  to  become  the  goods  of  another  man ;  nor  ought  it  to  affect 
their  personal  obligations  or  existing  relations  between  themselves." 
It  is  undoubtedly  true,  as  a  general  proposition,  that  a  vessel  driven 
by  a  stress  of  weather  into  a  foreign  port  is  not  subject  to  tlie  applica- 
tion of  the  local  laws,  so  as  to  render  the  vessel  liable  to  penalties 
which  would  be  incurred  by  having  voluntarily  come  within  the  local 
jurisdiction.  The  reason  of  this  rule  is  obvious.  It  would  be  a  mani- 
fest injustice  to  punish  foreigners  for  a  breach  of  certain  local  laws, 
unintentionally  committed  by  them,  and  by  reeson  of  circumstances 
over  which  they  had  no  control. 

Thus,  to  cite  one  of  the  most  ordinary  instances  in  which  the  rule  is 
applied.     A  storm  drives  a  vessel,  having  a  perfectly  legal  cargo 
according  to  the  laws  of  the  country  from  which  it  sailed,  or  to  which 
it  is  bound,  into  the  port  of  a  country  where  such  a  cargo  is  illegal 
and  contraband.     To  subject  this  cargo  to  the  same  penalty  as  if  it 
were  clandestinely  smuggled,  would  bo  unjust.     Our  law,  therefore, 
says  :  "The  laws  of  the  country  which  gives  you  a  national  character 
shall  be  considered  as  protecting  you,  and  if  it  is  not  au  illegal  cargo 
in  your  own  country  it  shall  not  be  so  considered  in  the  country  into 
which  you  have  been  involuntarily  brought."     And  this  is  precisely 
what  was  done  in  the  case  of  the  ''Enterprize."     The  cargo  was  legal 
according  to  the  laws  of  America,  illegal  according  to  the  laws  ot 
England  ;  and  if  brought  within  British  jurisdiction,  it  rendered  the 
vessel  liable  to  confiscation.     It  was  brought  within  that  jurisdiction, 
but  under  circumstances  which  exempted  it  from  the  penalty ;  and 
accordingly,  so  far  the  rule  of  international  law  was  admitted  and 
allowed  to  prevail.    15ut  more  is  demanded ;  for  the  claim  is  for  indem- 
nity, because  the  cargo  had,  by  mere  act  and  operation  of  natural  law 
and  of  English  law,  resumed  a  character  denied  it  by  American  law. 
While  the  vessel  is^  to  the  extent  alluded  to,  free  from  the  operation 
of  the  local  laws,  it  by  no  means  follows  that  it  is  entitled  to  absolute 
exemption  from  the  local  jurisdiction  ;  as,  for  example,  it  can  scarcely 
be  contended  that  persons  on  board  the  vessel  would  not  be  subject  to 
the  local  jurisdiction  for  crimes  committed  within   it.    If  acts  of 
violence  were  committed  on  board  against  subjects  of  the  country 
to  which  the  port  belonged,  or  if  a  subject  should-  be  wrongfully 


i^iij 


Si' 


!•■ 


Ef 


1^^ 


i 


i 


i 


222 


ADJUSTMENT    OP  CLAIMS   UNDER   THE 


detained  on  board,  the  local  tribunals  would  be  entitled  to  inter- 
ior e,  to  preserve  the  peace  or  protect  the  injured  person.  This  position 
may  be  illustrated  by  the  law  applicable  to  the  case  of  vessels  of  war 
entering  a  foreign  port.  It  is  admitted  by  most,  if  not  all,  of  the 
writers  on  international  law,  that  national  vessels  are  exemi)t  from 
the  local  law. — (See  the  case  of  the  ''Santissima  Trindad,"  T  IVheaton, 
o52 ;  Wheaton's  International  Latv,  vol.  i.,^.  115 ;  PMllimore' k  Comm. 
on  International  Law, p.  308  and  p.  373.)  They  are,  as  it  were,  entitled 
to  a  species  of  extra-territoriality  ;  yet  it  has  been  held  by  tlie  Execu- 
tive of  the  United  States,  on  the  authority  of  two  Attorneys  General,* 
that  a  foreign  vessel  of  war  entering  its  harbor  is  not  entitled  to  abso- 
lute exemption  from  its  jurisdiction. 

"  The  ports  and  harbors  of  England  arc  a  part  of  tlie  kingdom.  The 
jurisdiction  of  the  kingdom  is  as  complete  over  tliem  as  over  the  land 
itself;  and  the  laws  of  nations  invest  the  commander  of  a  Ibreign  ship- 
of-war  with  no  exemption  from  the  jurisdiction  of  the  country  into 
which  he  comes.  It  cannot  be  conceived  that  any  sovereign  power 
would  permit  its  subjects  to  be  imprisoned  in  its  own  territory  by 
foreign  authority  or  violence,  without  using  the  most  effectual  means 
in  its  power  to  procure  their  enlargement.  Even  the  bouse  of  a  foreign 
minister  cannot  be  made  an  asylum  for  u  guilty  citizen,  nor  (it  is  ap- 
prehendeJ)  a  ])rison  for  an  innocent  one  ;  and,  though  it  be  exempt 
from  the  ordinary  jurisdiction  of  the  country,  yet  in  such  cases  recourse 
must  be  had  to  the  interposition  of  the  extraordinary  powers  of  the 
State.  The  commander  of  a  foreign  ship-of-war  cannot  claim  that 
extra-territoriality  which  is  annexed  to  a  foreign  minister  and  to  his 
domicil,  but  is  conceived  to  be  fully  within  the  reach  of  and  amenable 
to  the  usual  jurisdiction  of  the  State  where  he  hapi)ons  to  be.  The 
Attorney  General  therefore  conceives  that  a  \\v\i  o^  hahea-s  corpus  m\g\\i 
be  legally  a<\'arded  in  such  a  case."t 

Again:  "It  may  bo  assumed  as  a  doctrine  perfectly  and  iucontro- 
vertibly  cstablislied,  that  the  judicial  power  of  a  nation  extends  to 
every  person  and  everything  in  its  territory,  excepting  only  to  such 
foreigners  as  enjoy  the  right  of  extra-territoriality,  and  who  conse- 
quently are  not  looked  upon  as  temporary  subjects  of  the  State.  The 
empire,  united  to  the  domain,  establishes  the  jurisdiction  (if  the  nation 
in  the  territories  or  the  country  that  belongs  to  it.     It  is  that  or  its 


♦June  a4th,  1794.  Bradford.     March  11th,  1799,  C.  Qee. 

t  Opinions  of  tlie  I'nited  States  Attorneys  General,  p. — . 


CONVENTION   WITH   GREAT   BRITAIN. 


223 


The 


sovereign  who  is  to  exercise  justice  in  all  the  places  under  his  obedi- 
ence, to  take  cognizance  of  the  crimes  committed  and  the  differences 
that  arise  in  the  country." — {Vattel  c.  2,  sec.  84.)  "When  a  nation 
takes  possession  of  certain  parts  of  the  sea,  it  enjoys  the  empire  f.j  well 
as  the  domain,  for.  the  same  reason  we  have  alleged  in  treating  of 
land.  These  parts  of  the  sea  are  within  the  jurisdiction  or  the  terri- 
tory of  the  nation ;  the  sovereign  commands  them ;  he  makes  laws,  and 
may  punish  those  who  violate  them  ;  in  a  word,  he  has  the  same  rights 
there  as  on  land,  and,  in  general,  all  those  given  him  by  the  law  of 
the  state. ' ' — ( Vattel  6, 1  sec. ,  295.)  According  to  the  general  rule  then 
established  by  these  citations,  every  ship,  even  a  public  ship-of-war  of 
a  foreign  nation,  at  anchor  in  the  harbor  of  New  York,  is  within  the 
ti'vritory  of  the  State  of  New  York,  and  subject  to  the  service  of  judi- 
cial process."* 

This  explanation  of  the  law  of  nations  shows  that  when  a  vessel  is 
in  a  foreign  port,  under  such  circumstances  as  entitle  it  to  exemption 
from  the  application  of  the  local  law,  the  exemption  cannot  be  put  on 
the  same  ground  as  the  immunity  from  interference  of  a  vessel  on  the 
higli  seas  ;  for  there  in  time  of  peace  it  is  absolute.  There  is  no  right 
on  the  part  of  a  foreign  court  even  to  inquire  into  the  legality  of  any- 
thing occurring  in  the  vessel  of  another  country  while  at  sea ;  but 
within  the  territories  of  a  country  the  local  tribunals  are  paramount, 
and  have  the  right  to  summon  all  within  the  limits  of  their  jurisdic- 
tion, and  to  inquire  into  the  legality  of  their  acts,  and  determine  upon 
them  according  to  the  law  which  may  be  applicable  to  the  particular 
case.  It  appears  to  me,  therefore,  that  it  cannot  with  correctness  be 
said,  ''that  a  vessel  forced  by  stress  of  weather  into  a  friendly  port  is 
under  the  exclusive  jurisdiction  of  the  State  to  which  she  belongs,  in 
the  same  way  as  if  she  were  at  sea."  She  has  been  brought  within 
another  jurisdiction  against  her  will,  it  is  true,  but  equally  against  the 
will  and  without  fault  on  the  part  of  the  foreign  power ;  she  brings 
with  her  (by  the  law  of  nations)  immunity  from  the  operation  of  the 
local  laws  for  some  purposes,  but  not  for  all,  and  the  extent  of  that 
immunity  is  the  proper  subject  of  investigation  and  adjudication  by 
the  local  tribunals. 

Let  us  consider  then  the  principles  which  ought  to  guide  the  local 
courts  in  this  investigation. 


'Opinions  of  the  United  States  Attorneys  General,  p- 


224 


ADJUSTMENT   OF   CLAIMS    iJNDER   THE 


It  is  true  that  by  what  in  teniied  the  "  coinitv  of  nations"  the  laws 
of  one  country  are,  in  some  cases,  allowed  by  another  to  have  opera- 
tion ;  but  in  those  cases  the  foreign  law  lias  its  authority  in  the  other 
country  from  the  sanction,  and  to  the  extent  only  of  the  sanction, 
given  to  it  there,  and  not  from  its  original  institution.  On  this  sub- 
ject Vattel  observes :  "It  belongs  exclusively  to  each  nation  to  form 
its  own  judgment  ot  what  its  conscience  prescribes  to  it — of  what  it 
can  or  cannot  do,  of  ^^hat  is  proper  or  improper  for  it  to  do;  and  of 
course  it  re^ts  solely  with  it  to  examine  and  determine  whether  it  can 
perform  any  office  for  another  nation  without  neglecting  the  duty 
which  it  owes  to  itself;  and  for  any  other  State  to  interfere,  to  compel 
her  to  act  in  a  different  manner,  would  be  an  infringement  of  the 
liberty  of  nations.'" — {Story's  Con/fid  of  Laws,  chap.  2,  sec.  37,  citing 
Vattel,  Prelim.  Dis^.  2yp-  61,  62,  sec.  14,  10;  Story' s  Conflict  of  Laws, 
<hap.  2,  sec.  25,  and  see  also  sec.  24.) 

From  these  principles  it  results  that  no  nation  can  be  called  upon, 
or  ought,  to  permit  the  operation  of  foreign  laws  within  its  territory 
when  those  laws  are  contrary  to  its  interests  or  its  moral  sentiments. 

Mr.  Justice  Story  says :  * '  No  nation  can  be  justly  required  to  yield  up 
its  own  fundamental  policy  and  institutions  in  favor  of  those  of  another 
nation ;  much  less  can  any  nation  be  required  to  sacrifice  its  own  in- 
terests in  favour  of  another,  or  to  enforce  doctrines  which,  in  a  moral 
or  political  view,  are  incompatible  with  its  own  safety  or  happiness, 
ov  conscientious  regard  to  justice  and  duty."  And  again,  after  ob- 
serving that  "]>er8onal  disqualifications,  not  arising  from  the  law  of 
nations,  but  from  the  principles  of  the  customary  or  positive  law  of  a 
foreign  country,  are  not  regarded  in  other  countries,"  he  emphatically 
says :  "So  the  state  of  slavery  will  be  recognized  in  any  country  whose 
institutions  and  policy  prohibit  slavery."  In  the  case  also  of  Polydor 
V.  Prince,  Mr.  Judge  Ware  held  that  a  slave  might  maintain  an  action 
for  a  tort  done  him  on  the  high  seas,  where  all  nations  can  and  do 
claim  an  exclusive  jurisdiction  over  their  own  vessels,  in  a  vessel  be- 
longing to  a  slave  State,  on  the  arrival  of  that  vessel,  under  any  cir- 
cumstances, within  the  jurisdiction  of  the  non-slaveholding  State, 
observing  that  "  it  was  supposed  at  the  argument  that  the  capacity  of 
the  libellant  to  maintain  this  action  in  the  courts  of  the  United  States 
may  stand  on  grounds  somewhat  different  from  what  it  would  in  the 
States  courts  ;  that  slavery  existing  in  some  of  the  individual  Sta  tea 


CONVENTION  WITH  GREAT  BRITAIN. 


225 


lie  laws 
i;  opora- 
le  other 
inction, 
his  sub- 
to  form 
what  it 
;  and  of 
er  it  can 
he  duty 

>  compel 
it  of  the 
T,  citing 
of  Laws, 

ed  upon, 
territory 
itiments. 

>  yield  up 
f  another 

own  in- 
a  moral 
ippiness, 
after  ob- 
le  law  of 
law  of  a 
latically 
ry  whose 
Polydor 
an  action 
and  do 
essel  be- 
any cir- 
ig  State, 
pacity  of 
ed  States 
Id  in  the 
1  States 


and  not  being  prohibited  by  the  Constitution  and  laws  of  the  United 
States,  the  national  courts  might  be  bound  by  the  principles  of  the 
ju8  (jentium  to  recognize  the  incapacities  of  slaves  having  a  foreign 
domicil,  even  where  it  would  not  be  done  by  the  slave  courts,  and 
that  the  national  tribunals  are  under  the  same  obligation  in  this 
respect,  whether  sitting  in  a  State  where  slavery  is  admitted  or  where 
it  is  prohibited.     If  this  were  conceded — and  in  the  view  which  I 
take  of  the  case  I  do  not  think  it  necessary  to  give  an  opinion  on  the 
question — the  answer  is,  that  a  court  sitting  in  Louisiana  is  no  more 
bound  than  one  sitting  in  Maine  to  recognize,  as  to  any  acts  or  rights 
acquired  within  the  exclusive  jurisdiction  of  the  United  States,  the 
artificial  incapacities  of  persons  resulting  from  a  foreign  law.     The 
question  in  both  cases  would  be,  whether  the  party  could,  by  the  laws 
of  the  United  States,  have  a  standing  in  court.     The  court  certainly 
is  not  bound  to  enforce  against  him  a  personal  incapacity  derived  from 
the  law  of  his  domicil,  because  that  lato  can  have  no  force  in  this  coun- 
try any  further  than  our  law,  on  the  principle  of  comity,  chooses  to 
adopt  it ;  and  every  nation  will  judge  for  itself  how  far  it  is  consistent 
with  its  own  interest  and  policy  to  extend  its  comity  in  this  respect. 
*     *  If  the  incapacity  alleged  were  slavery^  it  is  not  for  me  to  say 
what  would  be  the  judgment  of  a  court  sitting  within  a  jurisdiction 
where  slavery  is  allowed ;  but  sitting  as  this  court  does  in  a  place  where 
slavery  by  the  local  law  is  prohibited,  I  do  not  feel  myself  called  upon 
to  allow  that  disqualification  when  it  is  alleged  by  a  wrongdoer,  as 
attaching  to  the  libellant  by  the  laws  of  a  foreign  power,  for  the  pur- 
pose of  withdrawing  himself  from  responsibility  for  his  own  wrong. ' ' — 
See  also  Prigg  v.  the  Commonwealth  of  Pennsylvania,  16  Peters  539. 

The  language  of  Chanceller  Kent*  is  equally  emphatic  on  this  sub- 
ject ;  he  says  "  there  is  no  doubt  of  the  truth  of  the  general  proposi- 
tion, that  the  laws  of  a  country  have  no  binding  force  beyond  its 
territorial  limits  ;  and  their  authority  is  admitted  in  other  States,  not 
ex  proprio  vigore,  but  ex  comitate  ;  or,  in  the  language  of  Huberus, 
'quatenus  sine  praejudicio  indulgentium  fieri  potest.'  Every  indepen- 
dent State  will  judge  of  itself  how  far  the  comitas  inter  communitates 
is  to  be  permitted  to  interfere  with  its  domestic  interests  and  policy." 
The  general  and  most  beneficial  rule  of  international  law  contributing 
to  the  safety  and  convenience  of  mankind  is :  ^'Statuta  suo  dauduntur 

*  2  Kent's  Comm.,  p.  457,  4th  edit. 

16 


ii 


'i! 


a 


iii'i  I 


V 


m 


226 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


territorio,  nee  ulti'a  territonum  disponunt."  Neither  is  comity  to  be 
exercised  in  doubtful  cases  ;  and  whenever  a  doubt  exists,  the  court 
which  decides  will  prefer  the  law  of  its  own  country  to  that  of  the 
stranger.  Sard  (Ma  Creditora)  17 ;  Martin,  596.  The  question  of  what 
is  or  what  is  not  within  the  comity  of  nations  is  for  eac'i  particular 
nation  to  decide;  and  whether  it  will  be  bound  by  it,  or  waive  in  favor 
of  another  nation  its  private  laws,  is  equally  a  matter  for  the  consid- 
eration of  each  individual  country.  Now,  in  tlio  case  of  slavery, 
Great  Britain  has  declared  that  under  no  circumstances  will  she  tol- 
erate, acknowledge,  or  admit  slavery  within  her  dominions.  This,  as 
Mr.  Webster  admits,  is  now  "the  well  known  and  clear  promulga- 
tion of  the  will  of  the  sovereign  power,  and  the  well  known  rule  of 
English  law." 

The  question  then  resolves  itself  into  this :  In  what  cases  and  to 
what  extent  does  the  law  of  nations  require  that  the  local  law  shall 
admit  the  application  of  the  rules  of  the  foreign  law  instead  of  its 
own  ?  It  is  conceded  that  the  foreign  law  must  be  admitted  to  regu- 
late the  rights  of  property  (properly  so  called)  concerning  chattels  on 
board  the  vessel,  and  for  some  other  purposes  ;  but  the  question  we 
have  now  to  determine  is,  whether  the  law  of  nations  requires  that 
the  local  law,  which  ignores  and  forbids  slavery,  shall  admit  within 
its  jurisdiction  the  foreign,  which  maintains  slavery. 

Now,  the  two  fallacies  which  appear  to  me  to  pervade  the  whole  of 
the  argument  in  support  of  the  claim,  and  deprive  it  of  its  whole 
force,  are  these :  first,  that  slaves  are  property  in  the  ordinary  sense 
of  the  word  ;  and  secondly,  that  international  law  requires  that  the 
right  of  the  master  to  the  person  of  his  slave,  derived  from  local  law, 
shall  be  recognized  everywhere. 

It  is  true  that  by  the  municipal  law  of  particular  countries  slaves 
may  be  treated  as,  and  may  even  be  declared  to  be,  property,  and  this 
has,  in  past  times,  been  the  case  in  some  portions  of  the  English  do- 
minions ;  but  there  is  an  essential  difference  between  the  rights  of 
owners  in  their  slave  and  ordinary  property.  This  difference  is  clearly 
laid  down  by  an  eminent  American  judge  in  the  case  of  the  Comnion- 
toealth  vs.  Aves,  18  ;  Pickering's  lieports,  216.  Chief  Justice  Shaw 
there  says,  "  that  it  is  not  speaking  with  strict  accuracy  to  say  that  a 
property  can  be  acquired  in  human  beings  by  local  laws.  Each  State 
may,  for  its  own  convenience,  declare  that  slaves  shall  be  deemed  pro- 


CONVENTION   WITH   GREAT  BRITAIN. 


227 


perty,  and  that  the  relations  and  laws  uf  personal  chattels  shall  be 
deemed  to  apply  to  them ;  but  it  would  be  a  perversion  of  terms  to  say 
that  such  local  laws  do  in  fad  make  them  personal  property  generally; 
they  can  only  determine  that  the  same  rules  of  law  shall  apply  to 
them  as  are  applicable  to  i)roperty,  and  this  effect  will  follow  only  as 
far  as  such  laws  p'oprio  vigore  can  operate. ' ' 

Mr.  Webster,  however,  does  not  hesitate  to  place  the  relation  of 
slavery  on  the  same  footing  with  that  of  marriage  and  parental  au- 
thority ;  but  the  answer  to  this  attempted  comparison  consists  in  this, 
that  all  nations  and  societies  acknowledge  marriage  and  parental  au- 
thority. They  ore,  indeed,  the  very  foundation  of  society  ;  they  may 
vory  in  form,  but  the  essence  remains  the  same  ;  they  cannot  so  much 
be  said  to  be  in  conformity  with  the  law  of  nature  as  to  be  themselves 
natural  laws.  This  is  not  the  case  with  slavery,  which  is  contrary  to 
the  law  of  nature,  and,  so  far  from  being  acknowledged  by  all  nations^ 
is  now  repudiated  by  almost  all.  Property  in  things,  however,  being 
recognized  in  all  countries,  it  follows  that  in  case  of  shipwreck  "  the 
local  law  would  not  operate  to  make  the  goods  of  one  man  to  become 
the  fijoods  of  another."  But  to  make  this  dictum  an  authority  for  the 
principle  contended  for,  it  must  first  bo  established  that  there  is  no 
distinction  between  property  in  man  and  property  in  beasts  or  things. 

In  the  case  of  Jones  vs.  Yanzandt,  (2  McLean,  596,)  it  was  held 
that  no  action  could  be  maintained  at  common  law  for  assisting  a  slave 
to  escape,  or  harboring  him  after  his  escape  into  a  free  State,  and  that 
damages  were  only  recoverable  in  such  a  case  by  virtue  of  the  Consti- 
tution of  the  United  States.  In  giving  judgment  in  that  case,  Mr. 
Justice  McLean  observed:  ''The  traffic  in  slaves  does  not  come  under 
the  constitutional  power  of  Congress  to  regulate  commerce  among  the 
several  States.  In  this  vieio  the  Constitution  does  not  consider  slaves  as 
merchandise.  This  was  held  in  the  case  of  Grooves  and  Slaughter, 
(IS  Peters.)  The  Constitution  nowhere  speaks  of  slaves  as  property. 
*  *  *  The  Constitution  treats  of  slaves  as  persons."  "  The  view 
of  Mr.  Madison,  who  thought  it  wrong  to  admit  in  the  Constitution 
the  idea  that  there  could  be  property  in  man,  seems  to  have  been  car- 
ried out  in  this  most  important  instrument.  Whether  slaves  are 
referred  to  in  it  as  the  basis  of  representation,  as  migrating,  or  being 
imported,  or  as  fugitives  from  labor,  they  are  spoken  of  as  persons." 
"What  have  we  to  do  with  slavery  in  the  abstract?    It  is  admitted 


228 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


by  almost  all  who  have  examined  into  the  subject  to  be  founded  in 
wrong,  in  oppression,  in  power  against  right."  >  .  .   ;■ 

There  is  yet  another  case  which  affords  a  further  striking  illustration 
of  the  fact  that  American  law  recognizes  an  essential  difference  between 
property  in  slaves  and  property  in  things,  so  as  to  affect  the  rights  of 
the  owner  independently  of  his  will.  The  second  section  of  the  fourth 
article  of  the  Constitution  protects  every  slave  owr  er  from  loss  of  his 
slaves  by  means  of  their  flying  into  a  free  State ;  it  gives  him  a  right 
to  follow  the  slave,  and  seize  him  wherever  he  may  find  him.  Yet,  in 
the  case  of  The  Commonwealth  vs.  HoUoway ,  (2  Sergt.  and  Rawle,  304,) 
it  was  held  that  where  a  female  slave  flying  into  Pennsylvania,  and 
there  giving  birth  to  a  child,  though  she  herself  might  be  reclaimed 
by  her  owner,  her  child  could  not  but  remain  free  by  virtue  of  the  law 
of  the  State,  which  declared  that  "  no  man  or  woman  of  any  nation 
shall  at  any  time  hereafter  be  deemed,  adjudged,  or  holden  within  the 
territories  of  this  commonwealth,  as  slaves  or  servants  for  life,  but  as 
free  men  and  women."  Now  it  is  obvious  that  if  the  property  in  the 
female  slave  were  regarded  in  the  same  light  as  property  in  an  animal, 
the  ordinary  rule  of  law,  ^'partm  sequitur  ventrem,"  referred  to  by  the 
learned  agent  of  the  British  government,  would  have  been  applicable. 
In  that  case,  as  in  the  present,  the  slave  owner  might  have  said,  as  he 
now  says:  "  It  was  not  by  my  consent  that  that  which  by  the  laws  of 
my  country  I  am  entitled  to  claim  as  my  property  has  been  brought 
within  the  operation  of  your  laws.  My  slave  and  her  increase  are 
mine ;  am  I  to  be  deprived  of  that  increase  because  it  has  been  by 
misadventure  cast  away  upon  your  soil?"  By  the  American  law,  as 
in  the  case  before  me,  the  English  law  answers  :  "It  may  be  that  in 
your  own  State  you  would  have  had  the  right  you  claim ;  but  we  do 
not  acknowledge  that  you  have  a  right  of  property  in  this  human  being 
as  you  could  have  in  a  horse  or  a  dog ;  if  you  had,  your  consent  alone 
would  be  considered  in  the  matter  ;  but  as  it  is,  here  is  an  intelligent 
being  who  is  entitled  to  be  dealt  with  by  our  law,  which  we  sit  here  to 
administer,  anl  not  yours,  as  a  man,  and  by  that  law  it  is  declared 
that  no  man  shall  be  a  slave."  In  the  case  also  of  Prigg  vs.  The 
Commonwealth  of  Pennsylvania,  (16  Peters,  608,)  it  was  again  held 
that  the  offspring  of  a  fugitive  slave  could  not  be  reclaimed  by  the 
owner.  On  the  authority,  then,  of  these  cases,  it  may  be  considered  as 
settled  that  by  the  law  of  the  United  States  the  presence  or  absence  of 


CONVENTION  WITH  GREAT  BRITAIN. 


229 


inded  in 

ustration 

I  between 

rights  of 

lie  fourth 

)ss  of  his 

n  a  right 

Yet,  in 

vie,  304,) 

mia,  and 

eclaimed 

f  the  law 

ly  nation 

ithin  the 

fe,  but  as 

ty  in  the 

1  animal, 

to  by  the 

pplieable. 

lid,  as  he 

B  laws  of 

brought 

'ease  are 

been  by 

I  law,  as 

e  that  in 

ut  we  do 

Ein  being 

nt  alone 

telligent 

t  here  to 

declared 

vs.  The 

lin  held 

by  the 

dered  as 

mence  of 


consent  or  voluntariness  on  the  part  of  the  owner  has  nothing  whatever 
to  do  with  the  question  of  whether  his  slave,  when  tvithin  the  territory 
of  a  State,  no  matter  how  brought,  which  does  not  acknowledge  slavery, 
shall  be  free  or  not.  The  answer  that  must  be  given  by  the  local 
tribunals,  when  called  upon,  must  depend  on  the  positive  law  of  the 
place.*  In  the  United  States,  the  Constitution  has  provided  an  answer 
in  the  fourth  article  ;  but  when  the  circumstances  are  such  that  the 
letter  of  that  enactment  or  some  other  is  not  applicable,  the  American 
law  declares,  like  the  English  law,  that  it  does  not  recognize  property 
in  man,  but  regards  them  all  alike,  whether  black  or  white,  as  entitled 
to  be  free. 

Mr.  Justice  Story  thus  distinctly  explains  the  general  principle  of 
public  law  on  this  subject,  and  the  modifications  which  have  been  in- 
troduced by  the  United  States  Constitution :  "By  the  general  law  of 
nations  no  nation  is  hound  to  recognize  the  state  of  slavery,  as  to  foreign 
slaves  found  within  its  territorial  dominions,  when  it  is  in  opposition  to 
its  own  policy  and  institutions,  in  favor  of  the  subjects  of  other  nations 
where  slavery  is  recognized.  If  it  does,  it  is  a  matter  of  comity,  and 
not  a  matter  of  international  right.  The  state  of  slavery  is  deemed 
to  be  a  municipal  regulation,  founded  upon  and  limited  to  the  range  of 
the  territorial  laws.  This  was  fully  recognized  in  Somersett's  case. 
It  is  manifest,  then,  from  this  consideration  of  the  law,  that  if  the  Con- 
stitution had  not  contained  this  clause,  every  non-slaveholding  State 
in  the  Union  would  have  been  at  liberty  to  have  dedared  free  all  slaves 
coming  within  its  limits,  and  to  have  given  them  entire  immunity  and 
protection  against  the  claims  of  their  masters."  And  again  he  says: 
"  The  duty  to  deliver  up  fugitive  slaves,  in  whatever  State  of  the 
Union  they  may  be  found,  and  of  course  the  corresponding  power  in 
Congress  to  use  the  appropriate  means  to  enforce  the  duty,  derive  their 
sole  validity  and  obligation  exclusively  from  the  Constitution  of  the 
United  States,  and  are  there  for  the  first  time  recognized  and  estab- 
lished in  that  peculiar  character." — (See  also  id.  ch.  iv,  sec.  96,  p. 
165-6  of  3d  edit.) 

That  foreign  nations,  then,  are  not  bound  by  any  rule  of  international 
law  to  recognize  slaves  as  property,  and  award  to  their  owners  the 
immunity  which,  by  the  comity  of  nations,  is  usually  granted  in 
respect  of  ordinary  chattels,  is  clear  from  the  course  of  legislation 

*  See  judgment  of  Judge  Ware,  ante,  p.  10. 


■  I 


230 


ADJUSTMENT  OF  CLAIMS  UNDER   THE 


pursued  by  the  United  States ;  for  if  they  could  be  so  bound,  no  law 
or  action  of  the  United  States  would  have  been  necessary  to  compel 
one  State  denying  the  right  and  existence  of  property  in  a  slave  to 
deliver  up  a  fugitive  to  another  State  admitting  and  maintaining  the 
right ;  and  for  this  reason,  that  the  law  of  nations;  being  as  binding 
between  State  and  State  as  between  the  United  States  and  foreign 
countries,  would  have  been  sufficient  for  the  purpose,  and  no  special 
law  would  have  been  necessary.  By  what  right,  then,  or  by  force  of 
what  argument,  can  the  United  States  insist  that  Great  Britain  is  to 
be  bound  by  the  law  of  nations  to  do  that  which,  by  its  own  legisla- 
tion, it  has  proved  beyond  all  question  the  separate  States  were  not 
and  could  not  be  bound  to  do? 

It  is  evident,  therefore,  from  a  view  of  the  American  authorities  alone, 
that  the  institution  of  slavery  depends  solely  upon  the  laws  of  each  indi- 
vidual State  in  which  it  is  allowed,  and  that  from  its  very  nature  it  is 
only  coextensive  with  the  territorial  limits  of  such  laws.  An  American 
writer  thus  describes  it:  "  It  is  an  institution,"  says  he,  "  in  which 
the  slave  has  no  voice.  It  operates  in  invitum.  The  slave  is  no  party, 
either  practically  or  theoretically,  to  the  law  under  which  he  lives  in 
servitude.  It  is,  moreover,  an  exceptional  law  ;  one  which  depends 
solely  for  its  observance  on  the  continuance  of  the  power  who  made  it. 
The  moment  that  potver  ceases,  the  objects  of  it  are  free  to  exercise  their 
natural  rights,  tohich  revive  to  them,  because  they  were  hdd  only  in  sub- 
jection or  abeyance  by  superior  force,  but  which  could  not  be  disturbed, 
alienated,  or  forfeited,  except  for  some  crime,  springing  as  they  do 
from  the  immutable  and  eternal  principles  of  nature  and  justice." 

It  appears  to  me  then  to  be  clearly  established  by  all  the  authori- 
ties on  the  subject,  that  nations  or  states  are  not  bound  to  recognize 
the  relation  of  master  and  slave  which  may  be  enacted  by  foreign  law. 

In  the  case  of  Forbes  v.  Cochrane  (2  B.  and  C.  448)  Mr.  Justice 
Holroyd  says :  "  A  man  cannot  found  his  claim  to  slaves  upon  any 
general  right,  because  by  the  English  law  such  right  cannot  be  con- 
sidered as  warranted  by  the  general  law  of  nations ;  and  if  he  can 
claim  at  all,  it  must  be  by  virtue  of  some  right  which  he  had  acquired 
by  the  law  of  the  country  where  he  was  domiciled  ;  that  when  auch 
rights  are  recognized  by  law,  they  must  be  considered  as  founded  not 
upon  the  law  of  nature,  but  upon  the  particular  law  of  that  country, 
and  must  be  coextensive,  and  only  and  strictly  coextensive,  with  the 


CONVENTION  WITH  GREAT  BRITAIN. 


231 


territories  of  that  State  ;  but  when  the  party  gets  out  of  the  territory 
where  it  prevails,  no  matter  under  what  circumstances,  and  under  the 
protection  of  another  potoer,  without  any  wrongful  act  done  by  the  party 
giving  the  protection,  the  right  of  the  master,  which  is  founded  on  the 
municipal  law  of  the  place  only,  does  not  continue. ' ' 

The  fallacy  contained  in  the  argument  in  opposition  to  this  view  of 
the  law  consists  in  ignoring  the  slave  as  a  man,  and  in  supposing  him 
to  be  possessed  of  no  rights,  as  against  the  individual  endeavoring  to 
keep  him  in  slavery,  which  a  foreign  nation  is  justified  in  taking  into 
consideration. 

As  a  man,  the  slave  is  as  much  entitled  to  appeal  to  the  protection 
of  our  laws  as  his  owner,  and  his  claim  must  be  adjudicated  upon  in 
conformity  with  the  same  principles.  In  the  country  whence  he 
came,  his  voice  could  not  be  heard  in  the  local  courts,  to  assert  the 
rights  which  he  derived  from  nature,  as  against  the  municipal  laws 
of  the  place  where  he  was  domiciled.  When  he  is  driven,  together 
with  his  so-called  owner,  to  the  shores  of  this  country  or  its  colonies, 
those  rights  of  his  master  which  are  founded  on  natural  law,  such  as 
property,  marriage,  &c.,  «fec.,  are  respected.  Why  then  are  we  to  be 
leaf  to  the  appeal  of  the  slave,  when  he  also  asks  to  have  his  rights, 
which  are  equally  founded  on  natural  law,  respected  ?  We  have  to 
choose  between  the  natural  law,  supported  by  our  own  law,  and  foreign 
municipal  law  in  direct  opposition  to  both. 

The  choice  is  none  of  our  seeking,  it  is  cast  upon  us  by  chance. 
It  would  be  to  make  international  law  a  partial  tyrant,  rather  than 
an  equal  arbitrator  between  nations — to  hold  that  one  country  can 
be  bound  under  any  circumstances,  without  fault  of  its  own,  to  re- 
ject the  law  of  nature  and  its  own  law,  in  favor  of  a  foreign  local  law 
in  opposition  to  both. 

"  The  law  of  nations,"  says  an  American  writer,  with  reference  to 
this  subject,  "  does  not  deal  with  the  fictions  and  conventional  rules 
which  particular  societies  of  men  may  have  adopted  as  suitable  to 
their  own  interests  and  government.  It  does  not  establish  any  geo- 
graphical lines,  and  declare  that  any  object  on  one  side  of  that  line  is 
one  thing,  and  that  when  it  is  moved  to  the  other  side  it  loses  or 
changes  its  nature  and  becomes  another  thing.  This  law  of  nature 
recognizes  only  manifest  natural  and  universal  truths,  whether  they 
are  of  a  moral  or  a  physical  natv  re,  and  from  these  truths  it  deduces 


il 


232 


ADJUSTMENT   OF  CLAIMS    UNDER  THE 


its  rules.  One  of  these  moral  truths  is,  that  every  man  has  a  right 
to  he  protected  in  the  enjoyment  of  his  property,  and,  therefore,  the 
duty  of  protecting  property  is  enjoined  on  all  nations. 

"  One  of  these  physical  truths  is,  that  all  inanimate  ohjects  and  ir- 
rational animals  are  capahle  of  becoming  propeity  whenever  appro- 
priated. The  quality  is  inherent  in,  and  inseparable  from  them. 
They  have  no  personality.  They  can  have  no  rights  while  they  exist ; 
it  is  impossible  that  this  character  should  be  taken  from  them.  A 
nation  may  declare  that  a  particular  article  shall  not  be  property,  or 
may  claim  it  to  be  contraband,  or  may  prohibit  its  importation.  But 
these  laws,  so  far  as  they  attempt  to  change  the  intrinsic  nature  of 
the  object,  are  mere  fictions,  which  are  obligatory  on  the  nation  that 
enacts  them. 

"  The  law  of  nature  and  of  nations  is  not  affected  by  the  local  law 
with  regard  to  these  objects.  Consequently,  when  the  forbidden  or 
contraband  article  is  thrown  by  accident  within  the  jurisdiction  of  the 
nation  that  has  denounced  it,  the  humanity  and  truth  of  the  law  of 
nature  interpose  with  paramount  authority  to  mitigate  or  suspend  the 
harshness  or  fiction  of  the  local  law,  and  the  property  is  protected  for 
its  owner,  until,  acting  in  good  faith,  he  can  remove  it  beyond  the 
local  jurisdiction. 

"  Let  us  now  apply  this  law  to  the  case  of  the  slave.  Man  has  a 
twofold  nature.  He  has  a  material,  tangible  body ;  and,  consequently, 
if  any  nation  is  so  unjust  as  to  declare  any  particular  class  of  men 
within  its  territory  to  be  property,  this  class,  by  means  of  the  coercion 
which  may  be  exercised  over  the  bodies  by  individuals  that  impose  it,, 
is  obliged  to  submit  to  what  is  a  mere  fiction  of  the  local  law,  and, 
unless  palliated  by  dire  necessity,  a  most  wicked  and  injurious  one. 

"  This  local  rule,  declaring  a  man  to  be  property,  is  altogether  un- 
true in  fact  and  morals.  Not  all  the  legislation  in  the  world  can 
change  the  decrees  of  Providence,  or  reconcile  the  material  nature  of 
property  with  the  spiritual  nature  of  man.  The  law  of  nature  and  of 
nations,  dealing  solely  in  actual  truths,  dees  not  recognize  this  local 
fiction;  and  although  it  refrains  from  interference  within  the  limits  of 
the  nation  establishing  it,  yet  it  takes  every  opportunity  beyond  these 
limits  of  asserting  or  vindicating  its  own  principles.  '-■>■■ 

"  It  is  one  of  these  first  principles^  that  man  has  an  immortal  soul, 


and 


(I 


CONVENTION  WITH   GREAT  BRITAIN. 


233 


and  it  will  not  recognize  or  protect  any  human  institution  that  is  at 
war,  as  slavery  is,  with  this  catholic  and  immutable  truth. 

"  When,  therefore,  a  man,  either  by  force  or  not  (and  it  may  be 
added,  by  accident)  on  the  part  of  his  owner,  escapes  beyond  the  limits 
of  the  local  law  that  fastens  slavery  upon  him,  he  falls  under  the  be- 
nign protection  of  the  law  of  nature,  which  steps  in  and  sets  bounds  to 
the  local  fiction,  and  declares  that  it  shall  only  be  respected  within 
the  jurisdiction  of  the  community  that  promulgated  it.  The  law  of 
nature  did  not  make  a  man  a  slave,  and  therefoie  that  law  will  not 
keep  him  one." 

Lord  Palmerstou,  in  eftect,  states  the  principle  thus  announced  when, 
with  the  concurrence  of  those  eminent  men  who  now  fill  the  highest 
judicial  seats  in  the  country,  viz :  the  present  lord  chancellor,  the 
lord  chief  justice  of  England,  and  the  judge  of  the  admiralty  court, 
he  declares  that  a  distinction  exists  between  laws  bearing  upon  the 
personal  liberty  of  man,  and  laws  bearing  upon  the  property  which 
man  may  claim  in  irrational  animals  or  in  inanimate  things. 

"  If  a  ship,"  says  his  lordship  in  a  despatch  upon  this  subject, 
"  containing  such  animals  or  things,  were  driven  by  stress  of  weather 
into  a  foreign  port,  the  owner  of  the  cargo  would  not  be  justly  de- 
prived of  his  property  by  the  operation  of  any  particular  law  which 
might  be  in  existence  in  that  port,  because  in  such  a  case  there  would 
be  but  two  parties  interested  in  the  transaction — the  foreign  owner 
and  the  local  authority  ;  and  it  would  be  highly  unjust  that  the  former 
should  be  stripped  of  what  belongs  to  him  through  the  lorcible  appli- 
cation of  the  municipal  law  of  a  State  to  which  he  had  not  voluntarily 
submitted  himself. 

**  But  in  a  case  in  which  a  ship  so  driven  into  a  foreign  port  by 
stress  of  weather  contains  men  over  whose  personal  liberty  another 
man  claims  to  have  an  acquired  right,  there  are  three  parties  to  the 
transaction — the  owner  of  the  cargo,  the  local  authority,  and  the  al- 
leged slave ;  and  the  third  party  is  no  less  entitled  than  the  first  to 
appeal  to  the  local  authority  for  such  protection  as  the  law  of  the 
land  may  afford  him.  But  if  men  who  have  been  held  in  slavery  are 
brought  into  a  country  where  the  condition  of  slavery  is  unknown  and 
forbidden,  they  are  necessarily,  and  by  the  very  nature  of  things, 
placed  at  once  in  the  situation  of  aliens  who  have  at  all  times  from 
their  birth  been  free. 


m 


li 


I 


■'<i 


234 


ADJUSTMENT  OF  CLAIMS  UND£R  THE 


"  Such  persons  can  in  no  shape  be  restrained  of  their  liberty  by 
their  former  master  any  more  than  by  any  other  person. 

"  If  they  were  given  up  to  such  former  master,  they  would  be  ag- 
grieved, and  would  be  entitled  to  sue  for  damages.  But  it  would  be 
absurd  to  say  that  when  a  State  has  prohibited  slavery  within  its  ter- 
ritory, this  condition  of  things  must  arise,  namely,  that  as  often  as  a 
slave-ship  shall  take  refuge  in  one  of  the  ports  of  that  State,  liability 
must  necessarily  be  incurred  either  to  the  former  owner  of  the  slaves, 
if  the  slaves  be  liberated,  or  to  the  slaves  themselves,  if  they  are  de- 
livered up  to  the  former  owner. 

*'  If,  indeed,  a  municipal  law  be  made  which' violates  the  law  of  na- 
tions, a  question  of  another  kind  may  arise.  But  the  municipal  law 
which  forbids  slavery  is  no  violation  of  the  law  of  nations.  It  is,  on 
the  contrary,  in  strict  harmony  with  the  law  of  nature ;  and,  there- 
fore, when  slaves  are  liberated  according  to  such  municipal  law,  there 
is  no  wrong  done,  and  there  can  be  no  compensation  granted." 

I  have  hitherto  considered  this  case  upon  general  principles,  be- 
cause, as  other  cases  may  occur,  it  is  important  to  lay  down  general 
rules  ;  but  the  special  circumstances  of  the  case  would  disentitle  the 
claimants  to  compensation. 

One  ground,  if  indeed  it  be  not  the  chief  ground  upon  which  this 
claim  has  been  rested,  is,  that  the  Enterprize  was  compelled  by  Tieces- 
sity  to  put  into  the  port  of  Bermuda,  and  that  on  this  account  the 
owners  of  the  slaves  were  entitled  to  claim  exemption  from  the  opera- 
tion of  English  laws.  I  do  not  think,  however,  that  any  such 
case  of  necessity  has  been  made  out  as  would  give  rise  to  the  exemp- 
tion contended  for,  if  under  any  circumstances  it  could  arise.  It  is 
not  pretended  that  the  Enterprize  was  forced  by  storm  into  Bermuda. 
All  that  is  asserted  is,  that  her  provisions  ran  short  by  reason  of  her 
having  been  driven  out  of  her  course.  No  case  of  pressing,  over- 
whelming need  is  shown  to  have  existed ;  but,  to  avoid  the  inconve- 
nience of  short  rations  (and,  considering  the  nature  of  the  cargo,  it 
was  an  inconvenience  which  a  very  slight  delay  was  likely  to  occasion) 
the  master  put  into  an  English  harbor  to  procure  supplies.  These 
facts  do  not  certainly  disclose  that  paramount  case  of  necessity  which 
has  been  insisted  on  throughout  the  argument,  and  which  alone  (if 
any  circumstances  could  give  rise  to  the  exemption  upon  which  this 
claim  is  supported)  could  form  the  basis  of  such  an  appeal  as  the 


CONVENTION    WITH  GREAT  BRITAIN. 


236 


present.  If  a  mere  scarcity  of  provisions,  which  might  arise  from  so 
many  causes,  is  to  be  considered  not  only  as  a  sufficient  excuse  fcr  the 
entrance  of  a  vessel  into  a  British  port  .^ith  a  prohibited  cargo,  but  is 
also  to  entitle  it  to  an  exemption  from  the  operation  of  English  law, 
it  is  impossible  to  say  to  what  the  admission  of  such  a  principle  might 
lead,  or  what  frauds  on  the  part  of  slave  speculators  it  might  induce. 

With  respect  to  the  cases  of  the ' '  Comet ' '  and  ' '  Encomium, ' '  it  has 
been  insisted  that  they  are  not  distinguishable  in  principle  from  that 
of  the  "  Enterprize ; "  and  that,  as  the  English  government  granted 
compensation  in  these  cases,  w^e  are  bound  by  the  precedent  thus  made. 
Those  vess*  ^s, '  ver,  were  driven  into  British  ports,  and  the  slaves 
on  board  »vv»e  set  ..  >e  before  the  passi.  ..  the  act  abolishing  slavery. 
There  was,  therefore,  no  importation  within  the  meaning  of  the  act 
(5  Geo.  IV,  ch.  113)  which  declared  it  illegal  to  import  slaves,  and 
made  it  a  felony  to  do  so,  and  consequently  there  was  no  breach  of  the 
Engliiu  law.  Being  then  in  an  English  port,  the  only  question  was 
whether  there  was  any  law  which  prevented  their  owners  retaining 
possession  of  them.  At  that  time  there  was  not.  Slavery  was  then 
in  ftill  force  in  the  Bahamas,  and  of  the  same  kind  as  that  to  which 
the  American  slaves  were  subject.  The  possession  of  the  slaves  was 
not  therefore  unlawful,  nor  was  the  relation  between  them  and  their 
masters  liable  to  be  dissolved  by  the  mere  accidental  arrival  of  both 
in  the  colony.  But  at  the  time  when  the  "  Enterprize"  was  brought 
into  the  port  of  Hamilton,  Great  Britain  had  utterly  and  forever  abol- 
ished the  status  of  slavery  throughout  the  British  colonies  and  planta- 
tions abroad;  (see  act  of  3  arid  4,  Wm.  IV,  ch.  IS,  sec.  9.)  And  by 
an  act  of  the  colonial  legislature,  the  apprenticeship  system^  created 
by  the  act  of  William  IV,  was  dispensed  with.  Slavery,  therefore, 
in  no  form  whatever,  was  known  in  the  Bermudas  at  the  time  the 
"Enterprize"  entered  the  port.  It  was  impossible  therefore  that  any 
judge  called  upon  to  administer  the  law  within  these  islands  could,  for 
any  purpose,  or  under  any  circumstances,  recognize  the  relation  of 
master  and  slave  as  subsisting  within  the  reach  of  his  authority. 

Under  these  circumstances,  I  am  clearly  of  opinion  that  the  claim 
of  the  owners  of  the  slaves  on  board  the  "  Enterprize"  at  the  time  she 
put  into  Port  Hamilton,  cannot  be  sustained,  and  that  it  ought,  upon 
every  principle  of  law,  to  be  rejected. 


ii 


iii 


1 


,11 


'    \'  i 


it 


236 


ADJUSTMENT  OF  CLAIMS   UNDER  THE 


Bates,  Umpire : 

This  claim  is  presented  on  behalf  of  the  Charleston  Marine  Insur- 
ance Company  of  South  Carolina,  and  of  the  Augusta  Insurance  Com- 
pany in  Georgia,  for  the  recc  /ery  of  the  value  of  seventy-two  slaves, 
forcibly  taken  from  the  brig  Enterprize,  Elliot  Smith,  master,  on  the 
20th  of  February,  1835,  in  the  harbor  of  Hamilton,  Bermuda.  The 
following  are  the  facts  and  circumstances  cT  the  case :  The  American 
brig  Enterprize,  Smith,  maste  ,  sailed  from  Alexandria,  in  the  Dis- 
trict of  Columbia,  in  the  United  States,  on  the  22d  January,  1835, 
bound  for  Charleston,  South  Carolina,  after  encountering  head  winds 
and  gales,  and  finding  their  provisions  and  water  running  short,  it 
was  deemed  best  by  the  master  to  put  into  Hamilton,  in  the  island  of 
Bermuda,  for  supplies.  She  arrived  there  on  the  11th  of  February, 
having  taken  in  the  supplies  required,  and  having  completed  the  re- 
pair of  the  sails,  she  was  ready  for  sea  on  the  19th  with  the  pilot  on 
board.  During  the  repairs,  no  one  from  the  shore  was  allowed  to 
communicate  with  the  slaves.  The  vessel  was  kept  at  anchor  in  the 
harbor  and  was  not  brought  to  the  wharf.  Being  thus  ready  for  sea, 
Captain  Smith  proceeded,  with  his  agent,[to  the  custom-house  to  clear 
his  vessel  outward.  The  collector  stated  that  he  had  received  a  verbal 
order  from  the  council  to '  *ain  the  brig's  papers  until  the  governor's 
pleasure  could  be  known. 

The  comptroller,  and  a  Mr.  Tucker,  then  went  to  the  other  public 
offices,  and  on  their  return  to  the  custom-house,  the  comptroller,  after 
consulting  for  a  few  minutes  with  the  collector,  declared  that  he  would 
not  give  up  the  papers  that  evening,  but  would  report  the  vessel  out 
the  next  morning,  as  early  as  the  captain  might  choose  to  call  for  the 
papers. 

In  consequence  of  this  decision,  the  captain  immediately  noted  his 
protest  in  the  secretary's  office  against  the  collector  and  comptroller 
for  the  detention  of  his  ship's  papers,  and  informed  the  officer  of  the 
customs  he  should  hold  them  responsible ;  that  he  (the  captain)  feared 
the  colored  people  of  Hamilton  would  come  on  board  his  vessel  at 
night  and  rescue  the  slaves,  as  they  had  threatened  to  do. 

The  collector  then  replied  there  was  no  danger  to  be  apprehended, 
that  the  colored  people  would  not  do  anything  without  the  advice  of  the 
whites,  and  they  knew  the  laws  too  well  to  disturb  Captain  Smith. 


CONVENTION  WITH   GREAT  BRITAIN. 


287 


At  20  minutes  to  6  o  clock,  p.  m.,  the  chief  justice  sent  a  writ  of 
habeas  corpus  on  board,  and  afterwards,  a  file  of  black  soldiers  armed, 
ordering  the  captain  to  bring  all  the  slaves  before  him,  the  Chief  Jus- 
tice, which  Captain  Smith  was  obliged  to  do.  On  the  slaves  being 
informed  bj  the  chief  justice  that  they  were  free  persons,  seventy- 
two  of  them  declared  they  would  remain  on  shore,  which  they  did, 
and  only  six  of  them  returned  on  board  to  proceed  on  the  voyage. 

This  is  believed  to  be  a  faithful  sketch  of  the  case,  from  which  it 
appears,  that  the  American  brig  Enterprise  was  bound  on  a  voyage, 
from  one  port  in  the  United  States  to  another  port  of  the  same  country, 
which  was  lawful  according  to  the  laws  of  her  country  and  the  law  of 
nations.  She  entered  the  port  of  Hamilton  in  distress  for  provisions 
and  water.  No  offence  was  committed  against  the  municipal  laws  of 
Great  Britain  or  her  colonies,  and  there  was  no  attempt  to  land  or  to 
establish  slavery  in  Bermuda  in  violation  of  the  laws. 

It  was  well  known  that  slavery  had  been  conditionally  abolished  in 
nearly  all  the  British  dominions  about  six  months  before,  and  that 
the  owners  of  slaves  had  received  compensation,  and  that  six  years 
apprenticeship  was  to  precede  the  complete  emancipation;  during 
which  time  apprentices  were  to  be  bought  and  sold  as  property,  and 
were  to  be  liable  to  attachment  for  debt. 

No  one  can  deny  that  slavery  is  contrary  to  the  principles  of  justice 
and  humanity,  and  can  only  be  established  in  any  country  by  law. 
At  the  time  of  the  transaction  on  which  this  claim  is  iV'inded,  slavery 
existed  by  law  in  several  countries,  and  was  not  wholly  abolished  in 
the  British  dominions ;  it  could  not  then  be  contrary  to  the  law  of 
nations,  and  the  Enterprize  was  as  much  entitled  to  protection  as 
though  her  cargo  consisted  of  any  other  description  of  property.  The 
conduct  of  the  authorities  at  Bermuda,  was  a  violation  of  the  laws  of 
nations,  and  of  those  laws  of  hospitality  which  should  prompt  every 
nation  to  afford  protection  and  succor  to  the  vessels  of  a  friendly 
neighbor  that  may  enter  their  ports  in  distress. 

The  owners  of  the  slaves  on  board  the  Enterprize  are  therefore 
entitled  to  compensation  ;  and  I  award  to  the  Augusta  Insurance  and 
Banking  Company,  or  their  legal  representatives,  the  sum  of  sixteen 
thousand  dollars,  and  to  the  Charleston  Marine  Insurance  Company, 
or  their  legal  representatives,  the  sum  of  thirty-three  thousand  dol- 
lars, on  the  fifteenth  of  January,  1855. 


m 


288 


ADJUSTMENT   OF  CLAIMS   UNDER   THE 


(f     .'•,■  (>.-■'»•  V 


u  -^ 


;v;'ji.  rt  '«?'  o.";.«»f  ■'•j* 


THE  HERMOSA. 


f: 


•f  '  y»" 


B 

T 


The  Hermosa,  witli  thirty-eight  slaves,  bound  from  Richmond,  Virginia,  to  New  Orleani, 
was  wrecked  on  the  Spanish  key,  Abaco,  and  was  relieved  by  wreckers,  who  took  off  the 
officers,  crew,  and  persons  on  board,  and  took  them  to  Nassau,  in  the  Bahamas,  to  procure  a 
vessel  to  continue  the  voyage. 

Held,  that  having  entered  the  port  of  Nassau  in  distress,  from  shipwreck,  she  was  entitled 
to  protection  for  the  purpose  under  which  she  entered. 


The  several  cases  of  the  Enterprize,  Hermosa,  and  Creole  were  sup- 
posed to  involve  substantially  the  same  principles,  and  were  embraced 
in  one  argument  by  counsel,  and  submitted  together. 

The  commissioners  drew  up  their  opinions  in  full  in  the  Enterprize, 
and  having  disagreed  in  that  case,  referred  that  and  the  other  cases  to 
the  umpire,  without  a  further  expression  of  their  opinions. 

The  particular  facts  in  the  case  of  the  Hermosa  arc  fully  set  forth  in 
the  decision  of  the  umpire,  and  need  not  be  here  stated. 

Thomas,  agent  and  counsel  for  the  United  States. 

Hannen,  agent  and  counsel  for  Great  Britain. 


GONVBNTIOM  WITH  OREAT  BRITAIN. 


239 


V  Orleans, 
ok  off  the 
procure  a 

u  entitled 


5re  sup- 
ubraced 


jrprize, 
ases  to 

orth  in 


Bates,  Umpire : 

The  umpire  appointed  agreeably  to  the  provisions  of  the  convention 
entered  into  between  Great  Britain  and  the  United  States,  on  the  8th 
of  February,  1853,  for  the  adjustment  of  claims  by  a  mixed  commis- 
sion^ having  been  duly  notified  by  the  commissioners  under  the  said 
convention,  that  they  had  been  unable  to  agree  upon  the  decision  to  be 
given  with  reference  to  the  claim  of  H.  N.  Templeman  against  the  gov- 
ernment of  Great  Britain ;  and  having  carefully  examined  and  con- 
sidered the  papers  and  evidence  produced  on  the  hearing  of  the  said 
claim ;  and  having  conferred  with  the  said  commissioners  thereon, 
hereby  reports  that  the  schooner  "Hermosa,"  Chattin,  master,  bound 
from  Richmond,  in  Virginia,  to  New  Orleans,  having  thirty-eight 
slaves  on  board,  belonging  to  H.  N.  Templeman,  was  wrecked  on  the 
19th  October,  1840,  on  the  Spanish  key,  Abaco. 

Wreckers  came  alongside,  and  took  off  the  captain  and  crew,  and 
the  thirty-eight  slaves,  and  contrary  to  the  wishes  of  the  master  of  the 
Hermosa,  who  urged  the  captain  of  the  wrecker  to  conduct  the  crew, 
passengers,  and  slaves  to  a  port  in  the  United  States,  they  were  taken 
to  Nassau,  New  Providence  where  Captain  Chattin  carefully  abstained 
from  causing  or  permitting  said  slaves  to  be  landed,  or  to  be  put  in 
communication  with  any  person  on  shore,  while  he  proceeded  to  con- 
sult with  the  American  consul,  and  to  make  arrangements  for  pro- 
curing a  vessel  to  take  the  crew  and  passengers  and  the  slaves  to  some 
port  in  the  United  States. 

While  the  vessel  in  which  they  were  brought  to  Nassau  was  lying 
at  a  distance  from  the  wharves,  in  the  harbor,  certain  magistrates 
wearing  uniform,  who  stated  themselves  to  be  officers  of  the  British 
government,  and  acting  under  the  orders  of  the  civil  and  military 
authorities  of  the  island,  supported  by  soldiery  wearing  the  British 
uniform,  and  carrying  muskets  and  bayonets,  took  forcible  possession 
of  said  vessels  and  the  slaves  were  transported  in  boats  from  said 
vessel  to  the  shore,  and  thence  under  guard  of  a  file  of  soldiers,  marched 
to  the  office  of  said  magistrates,  where,  after  some  judicial  proceedings, 
they  were  set  free,  against  the  urgent  remonstrances  of  the  master  of 
the  Hermosa  and  of  the  American  consul. 

In  this  case  there  was  no  attempt  to  violate  the  municipal  laws  of 
the  British  colonies.    All  that  the  master  of  the  Hermosa  required  was 


240 


ADJUSTMBNT  OF  CLAIMS  UNDER  THE 


that  aid  and  assistance  which  was  due  from  one  friendly  nation  to  the 
citizens  or  subjects  of  another  friendly  nation,  engaged  in  a  business 
lawful  in  their  own  country,  and  not  contrary  to  the  law  of  nations. 

Making  allowance,  therefore,  for  a  reasonable  salvage  to  the  wreckers, 
had  a  proper  conduct  on  the  part  of  the  authorities  at  Nassau  been 
observed,  I  award  to  the  Louisiana  State  Marine  and  Fire  Insurance 
Company^  and  the  New  Orleans  Insurance  Company,  (to  which  insti- 
tutions this  claim  has  been  transferred  by  H.  N.  Templeman,)  or 
their  legal  representatives,  the  sum  of  sixteen  thousand  dollars,  on  the 
fifteenth  January,  1866,  viz:  eight  thousand  dollars  to  each  company. 


•» 


(:■:» 


CONVENTION   WITH   GREAT  BSITAIN. 


241 


THE  CRF.OLE. 


The  Creole  lailed  from  Hampton  RoodH,  in  Virginia,  fur  New  Uriean*,  witli  aiuven  on 
board.  The  alavcs  on  the  poRiiago  roBo  on  the  otKcrrH  and  ciuw,  8ovorely  wounded  the 
captain,  the  chief  iiiuto,  und  two  of  tlio  crew,  ami  murdered  one  of  the  puMengera. 

The  mate  waa  then  compelled  to  navigate  the  vnonel  to  the  Balmmua.  On  her  arrival  ahe 
waa  taken  poaaeiHion  of  by  the  American  con«iil,  authority  wna  rcxtored,  nnd  meaaurea  were 
taken  to  send  the  vobbcI  to  the  United  States,  in  trder  that  those  sk  oa  charged  with 
mutiny  and  murder  on  the  high  seas  might  be  tried.  The  Britiih  ai'*horities  interfered  and 
liberated  the  ilaves. 

Held  that  tiie  circumstances  under  which  the  Creole  was  i  jinpellei'  to  enter  harbor  entitled 
her  to  protection,  and  that  the  interference,  by  liritisi.  authorit  <  ,  to  libera'-  the  sL'.oa  in 
such  case,  or  to  prevent  their  being  remanded  to  the  United  States  for  trial,  r  -  <i  in  violation 
of  the  rights  of  citixens  of  the  United  States  as  a  friendly  power,  und  of  t'l .:  !tvy  of  nationa. 


This  case  was  submitted  to  the  umpire  imder  the  circumstances 
named  in  the  preceding  case  of  "the  Hermosa,"  to  which  reference  is 
made. 

The  facts  in  the  case  are  briefly  set  forth  above,  and  are  also  stated 
at  length  in  the  opinion  of  the  umpire,  so  that  further  statement  of 
them  is  unnecessary. 

Thomas,  agent  and  counsel  for  the  United  States. 

Hannen,  agent  and  counsel  for  Great  Britain. 

16 


^1- 


J 


i: 


m 


242 


ADJUSTMENT  OP  CLAIMS   UNDER  THE 


Bates,  Umpire: 

This  case  having  been  submitted  to  the  umpire  for  his  decision,  he 
hereby  reports  that  the  claim  has  grown  out  of  the  following  circum- 
stances : 

The  American  brig  Creole,  Captain  Eusor,  sailed  from  Hampton 
Roads,  in  the  State  of  Virginia,  on  the  'iTth  October,  1841,  having 
on  board  one  hundred  and  thirty-five  slaves,  bound  for  New  Orleans. 
On  the  7th  November,  at  nine  o'clock  in  the  evening,  a  portion  of 
the  slaves  rose  against  the  officers,  crew,  and  passengers,  wounding 
severely  the  captain,  the  chief  mate,  and  two  of  the  crew,  and  mur- 
dering one  of  the  passengers ;  the  mutineers,  having  got  complete 
possession  of  the  vessel,  ordered  the  mate,  under  threat  of  instant 
death  should  he  disobey  or  deceive  them,  to  steer  for  Nassau,  in  the 
island  of  New  Providence,  where  the  brig  arrived  on  the  9th  Novem- 
ber, 1841. 

The  American  consul  was  apprised  of  the  situation  of  the  vessel, 
and  requested  the  governor  to  take  measures  to  prevent  the  escape  of 
the  slaves,  and  to  have  the  murderers  secured.  The  consul  received 
reply  from  the  governor,  stating  that  imder  the  circumstances  he 
would  comply  with  the  request. 

The  consul  went  on  board  the  brig,  placed  the  mute  in  command 
in  place  of  the  disabled  master,  and  found  the  slaves  all  quiet. 

About  noon  twenty  African  soldiers,  with  an  African  sergeant  and 
corporal,  commanded  by  a  white  officer,  came  on  board.  The  officer 
was  introduced  by  the  consul  to  the  mate  as  commanding  officer  of 
the  vessel . 

The  consul,  on  returning  to  the  shore,  was  summoned  to  attend  the 
g«)Vcrnor  and  council,  who  were  in  jsession,  who  informed  the  consul 
tliat  they  had  come  to  the  following  decision  : 

"  Ist.  That  the  courts  of  law  have  no  jurisdiction  over  the  alleged 
offences. 

*'  2d.  That,  as  an  informatiou  had  been  lod<i,ed  betbre  the  governor, 
charging  that  the  crime  of  murder  had  been  committed  on  board  said 
vessel  while  on  the  high  seas,  it  was  expedient  that  the  parties,  impli- 
cated in  so  grave  a  charge,  should  not  be  allowed  to  go  at  large,  and 
that  an  investigation  ought  tiierefore  to  be  made  into  the  charges, 
jind  examinations  taken  on  oath;  when,  if  it  should  appear  that  the 


CONVENTION    WITH    GREAT    BRITAIN. 


243 


original  information  was  correct,  and  that  a  murder  had  actually  heen 
committed,  that  all  the  parties  implicated  in  such  crime,  or  other  acts 
of  violence,  should  be  detained  here  until  reference  could  be  made  to 
the  Secretary  of  State  to  ascertain  whether  the  parties  should  be 
delivered  over  to  the  United  States  j^overnment ;  if  not,  how  other- 
wise to  dispose  of  them. 

"3d.  That  as  soon  as  such  examinations  should  be  taken,  all  per- 
souo  on  board  the  Creole,  not  implicated  in  any  of  the  offences  alleged 
to  have  been  committed  on  board  that  vessel,  must  be  released  from 
further  restraint." 

Then  two  magistrates  were  sent  on  board.  Tlie  American  consul 
went  also.  The  examination  was  commenced  on  Tuesday,  the  9th, 
and  was  continued  on  Wednesday,  the  10th,  and  then  postponed  until 
Friday,  on  account  of  the  illness  of  Captain  Ensor.  On  Friday  morn- 
ing it  was  abruptly,  and  without  any  explanation,  terminated. 

On  the  same  day,  a  large  number  of  boats  assembled  near  the 
Creole,  filled  with  colored  persons  armed  with  bludgeons.  They  were 
under  the  immediate  command  of  the  pilot  wlio  took  the  vessel  into 
the  port,  who  was  an  officer  of  the  government,  and  a  colored  man. 
A  sloop  or  larger  launch  was  also  towed  from  the  shore  and  anchored 
near  the  brig.  The  sloop  was  filled  with  men  armed  with  clubs,  and 
clubs  were  passed  from  her  to  the  persons  in  the  boats.  A  vast  con- 
course of  people  were  collected  on  shore  opposite  the  brig. 

During  the  whole  time  the  officers  of  the  government  were  on  board 
they  encouraged  the  insubordination  of  the  slaves. 

The  Americans  in  port  determined  to  unite  and  furnish  the  neces- 
sary aid  to  forward  the  vessel  and  negroes  to  New  Orleans.  The  con- 
sul and  the  officers  and  crews  of  two  other  American  vessels  had,  in 
fact,  united  with  the  officers,  men,  and  passengers  of  the  Creole  to 
effect  this.  They  were  to  conduct  her  first  to  Indian  quay,  Florida, 
where  there  was  a  vessel  of  war  of  the  United  States. 

On  Friday  morning,  the  consul  was  informed  that  attempts  would 
be  made  to  liberate  the  slaves  by  force,  and  from  the  mate  he  received 
information  of  the  threatening  state  of  things.  Tlie  result  vras,  the 
attorney  general  and  other  officers  went  on  board  the  Creole.  The 
slaves,  identified  as  on  board  the  vessel  conctrued  in  tlio  mutiny,  were 
sent  on  shore,  and  the  residue  of  the  slaves  were  called  on  deck  hy 
direction  of  the  attorney  general,  who  addressed  them  in  the  following 


i 


)■']; 


244 


ADJUSTMENT   OF   CLAIMS   UNDER   THE 


terms:  ''  My  friends,  "  or  "my  men,  you  have  been  delained  a  short 
time  on  board  the  Creole  for  the  purpose  of  ascertaining  what  indivi- 
duals were  concerned  in  the  murder.  They  have  been  identified,  and 
will  be  detained.  The  rest  of  you  are  free,  and  at  liberty  to  go  on 
shore,  and  wherever  you  please." 

The  liberated  slaves,  assisted  by  the  magistrates,  were  then  taken 
on  board  the  boats,  and  when  landed  were  conducted  by  a  vast  as- 
semblage to  the  superintendent  of  police,  by  whom  their  names  were 
registered.  They  were  thus  forcibly  taken  from  the  custody  of  the 
master  of  the  Creole,  and  lost  to  the  claimants. 

I  need  not  refer  to  authorities  to  show  that  slavery,  however  odious 
and  contrary  to  the  principles  of  justice  and  humanity,  may  be  estab- 
lished by  law  in  any  country ;  and,  having  been  so  established  in 
many  countries,  it  cannot  be  contrary  to  the  law  of  nations. 

The  Creole  was  on  a  voyage,  sanctioned  and  protected  by  the  laws 
of  the  United  States,  and  by  the  law  of  nations.  Her  right  to  navi- 
gate the  ocean  could  not  be  questioned,  and  as  growing  out  of  that 
right,  the  right  to  seek  shelter  or  enter  the  ports  of  a  friendly  power 
in  case  of  distress  or  any  unavoidable  necessity. 

A  vessel  navigating  the  ocean  carries  with  her  the  laws  of  her  own 
country,  so  far  as  relates  to  the  persons  and  property  on  board,  and  to 
a  certain  extent,  retains  those  rights  even  in  the  ports  of  the  foreign 
nations  she  may  visit.  Now,  this  being  the  state  of  the  law  of 
nations,  what  were  the  duties  of  the  authorities  at  Nassau  in  regard 
to  the  Creole  ?  It  is  submitted  the  mutineers  could  not  be  tried  by 
the  courts  of  that  island,  the  crime  having  been  committed  on  the 
high  seas.  All  that  the  authorities  could  lawfully  do,  was  to  comply 
with  the  request  of  the  American  consul,  and  keep  the  mutineers  in 
custody  until  a  conveyance  could  be  found  for  sending  them  to  the 
United  States. 

The  other  slaves,  being  perfectly  quiet,  and  under  the  command  of 
the  captain  and  owners,  and  on  board  an  American  ship,  the  authori- 
ties should  have  seen  that  they  were  protected  by  the  law  of  nations ; 
their  rights  under  which  cannot  be  abrogated  or  varied,  either  by  the 
emancipation  act  or  any  other  act  of  the  British  Parliament. 

Blackstone,  4th  volume,  speaking  of  the  law  of  nations,  states: 
''Whenever  any  question  arises,  which  is  properly  the  object  of  its 


CONVENTION    WITH   GREAT  BRITAIN. 


245 


;d  a  short 

at  indivi- 

ified,  and 

to  go  on 

len  taken 
X  vast  as- 
.mea  were 
\y  of  the 

er  odious 
be  estab- 
lished in 

the  laws 
t  to  navi- 
it  of  that 
lly  power 

her  own 
d,  and  to 
e  foreign 
law  of 
n  regard 
tried  by 
d  on  the 
3  comply 
ineers  in 
1  to  the 


jurisdiction,  such  law  is  here  adopted  in  its  full  extent  by  the  common 
law." 

The  municipal  law  of  England  cannot  authorize  a  magistrate  to 
violate  the  law  of  nations  by  invading  with  an  armed  ibrce  the  vessel 
of  a  friendly  nation  that  has  committed  no  offence,  and  forcibly  dis- 
solving the  relations  which  by  the  laws  of  his  country  the  captain 
is  bound  to  preserve  and  enforce  on  board. 

These  rights,  sanctioned  by  the  law  of  nations — viz:  the  right  to 
navigate  the  ocean,  and  to  seek  shelter  in  ease  of  distress  or  other 
unavoidable  circumstances,  and  to  retain  over  the  ship,  her  cargo,  and 
passengers,  the  laws  of  her  own  country — must  be  respected  by  all 
nations;  for  no  independent  nation  would  submit  to  their  violation. 

Having  read  all  the  authorities  referred  to  in  the  arguments  ou 
both  sides,  I  have  come  to  the  conclusion  that  the  conduct  of  the 
authorities  at  Nassau  was  in  violation  of  the  established  law  of  nations, 
and  that  the  claimants  are  justly  entitled  to  compensation  for  their 
losses.  I  therefore  award  to  the  undermentioned  parties,  their  assigns, 
or  legal  representatives,  the  sums  set  opposite  their  names,  due  on  the 
15th  of  Jtinuary,  1855.* 


*  The  several  sums  named  appear  in  the  list  of  awards. 


imand  of 
authori- 
nations ; 
)r  by  the 


i 


,  states: 
ct  of  its 


246 


ADJUSTMENT   OP  CLAIMS    DNDER   THE 


FLORIDA  BONDS. 

Tlio  territorial  governments  of  the  United  States  are,  within  the  powers  confided  to  them, 
independent  jurisdictions  ;  and  any  debts  inci.rred  by  them  impose  no  obligations  on  the 
general  government  for  their  discharge. 

The  facta  that  the  governor  of  the  Territory  is  appointed  by  the  general  government,  and 
that  Congress  has  power. of  disapproval  of  the  acts  of  a  Territory,  or  is  the  owner  of  largo 
tracts  of  land  in  the  Territory  which  is  not  subject  to  taxation,  do  not  vary  this  position. 

A  provision  in  the  constitution  of  a  State  "  that  no  other  or  greater  amount  of  tax  or 
revenue  shall  at  any  time  be  levied  than  may  be  required  for  the  necessary  expenses  of 
government,"  does  not  prevent  taxation  for  the  payment  of  already  existing  pecuniary  obli- 
gations of  the  government,  as  they  are  included  under  the  head  of  necessary  exjiciises  of  the 
government. 

The  admission  of  a  State  into  the  Union  witii  such  a  clause  in  its  constitution,  impose 
no  liability  or  claim  on  the  general  government,  in  law  or  equity,  for  the  payment  of  any 
debts  of  said  State  contracted  while  a  Territory. 


In  1835  the  territorial  government  of  Florida  incorporated  "the 
Union  Bank,"  with  a  capital  of  one  million  dollars,  with  power  to 
increase  its  capital  to  three  millions.  To  aid  in  raising  the  capital 
stock,  the  Territory  issued  bonds  acknowledging  its  indebtedness  to 
the  bank,  which  bonds  were  signed  officially  by  the  governor  and 
treasurer,  and  were  intrusted  to  the  bank  with  authority  to  dispose  of 
tliem  for  its  benefit. 

The  stockholders  of  the  bank  were  to  consist  entirely  of  citizens  of 
Florida.  They  were  required  to  mortgage  personal  property  and  real 
estate  to  an  amount  equal  in  value  to  the  stock  subscribed  for  by 
them  ;  and  this  property  was  to  be  holden  by  the  bank,  and  applied 
to  the  payment  of  the  principal  and  interest  of  the  bonds  of  the 
Territory  as  they  fell  due. 

A  charter,  with  provisions  of  a  similar  character,  was  granted 
about  the  same  time  to  the  "  Southern  Life  Insurance  and  Trust 
Company."  This  company  issued  bonds  or  "certificates,"  as  they 
were  called,  which  were  guarantied  by  tlie  Territory  ;  and  the  pro- 
perty of  the  stockholders  which  was  holden  by  the  company  was 
l>ledged  for  their  payment. 

Through  misfortunes  of  the  times  and  mismanagement  of  these 
institutions,  the  companies  failed,  for  the  most  part,  to  pay  the  bonds 


CONVENTION   WITH   GREAT   BRITAIN. 


247 


and  certificates  issued  to  tlicm  by  the  Territory,  or  the  interest  that 
lias  fallen  due  upon  them  ;  and  up  to  the  present  time  payment  has 
not  been  made  either  by  the  Territory  or  the  State  of  Florida. 

A  portion  of  the  bonds  and  certificates  issued  to  these  companies 
were  negotiated  in  Europe,  and  in  default  of  their  payment  by 
Florida  a  claim  is  now  made  before  this  commission  for  their  payment 
by  the  United  States  government. 

The  following  articles  in  the  constitution  of  Florida  have  been 
adverted  to  in  the  remarks  of  counsel  or  in  the  opinions  of  the  com- 
missioners : 

"  Artiolr  I. 

"  Declaration  of  Rights. 

"  Clause  19.  That  no  law  impairing  the  obligation  of  contracts 
shall  ever  be  passed. 

"  Articlk  VIII. 

"  Taxation  and  Revenue. 

"  Clause  2.  No  other  or  greater  amount  of  tax  or  revenue  shall, 
at  any  time,  be  levied,  than  may  be  required  for  the  necessary 
expenses  of  the  government. 

"Article  XVII. 

"  Sec,  1.  Nothing  in  this  constitution  shall  impair  the  obligation  of 
contracts,  or  violate  vested  rights  either  of  individuals  or  of  associa- 
tions claiming  to  exercise  cor])orate  privileges  in  this  State." 

Mr.  Kolt,  Queen's  counsel,  and  Mr.  Cairns  argued  the  case  for 
the  claimants,  assisted  by  Mr.  Hannen,  the  special  agent  and  counsel 
to  her  Majesty's  government ;  Mr.  Thomas,  agent  and  counsel  for  the 
United  States. 

The  following  points  were  taken  by  Mr.  Rolt : 

1.  The  principles  of  equity,  reason,  and  public  morals  require  the 
United  States  to  pay  this  debt  of  Florida,  contracted  while  a  Territory. 

2.  The  treaty  of  cession,  act  2  and  6. 

3.  The  debt  from  its  origin  was  a  debt  of  the  United  States  as  well 
as  of  the  Territory. 

4.  In  any  event,  the  United  States  government  confirmed  and  took 
upon  itself  this  debt  when  Florida  was  admitted  into  the  Union. 


h 


248 


ADJUSTMENT    OF  CLAIMS   UNDER   THE 


TiioM.AS,  agent  ami  counsel  for  the  United  States  :  ,, 

This  is  a  claimnow  presented  for  thefirsttimeagainst  the  government 
of  the  United  States  for  the  payment  of  the  interest,  and  ultimately 
the  principal,  of  certain  honds  issued  by  the  territorial  government  of 
Florida,  and  also  for  tlie  payment  of  other  bonds  issued  by  banking 
corporations,  and  guarantied  by  that  government. 

In  the  minds  of  disinterested  Americans  but  one  opinion  exists  on 
this  subject.  The  conviction  is  universal  that  there  can  be  no  consti- 
tutional or  legal  obligation  on  the  part  of  the  United  States  to  pay 
the  debts  of  a  Territory,  and  it  would  be  a  work  of  supererogation  to 
attempt  to  prove  this  proposition  before  an  American  judge;  but  as 
the  question  seems  not  to  be  so  evident  to  Englishmen,  and  as  much 
importance  has  been  given  to  it  here  by  the  two  leai".!'^l  and  distin- 
guished counsel  who  have  been  heard  lor  the  bondholders  and  her 
Majesty's  government,  I  deem  it  respectful  to  submit  the  reason  for 
this  conviction  of  the  American  people. 

As  this  question  is  more  important,  from  the  constitutional  prin- 
ciples involved,  than  perhaps  any  other  that  aviU  come  before  the 
commissioners^  I  desire,  in  the  first  place,  to  state  the  manner  in 
which  it  is  brought  before  them.  The  British  government  has  never 
presented  it  to  the  government  of  the  United  States,  and  it  has  at  no 
time  been  a  subject  of  discussion  between  them,  either  before  or  at  the 
signing  of  the  convention.  And  when  it  is  considered  that  England 
never  refuses  to  urge  upon  the  governments  of  other  countries  the  just 
and  lawful  demands  of  her  subjects,  it  will  not  be  difficult  for  the 
commissioners  to  perceive  why  she  never  presented  this  claim  to  the 
government  of  the  United  States.  Under  these  circumstances,  it  is 
fair  to  conclude  that  her  Majesty's  government  did  not  consider  it  a 
claim  against  the  United  States ;  but  it  has,  nevertheless,  been  pre- 
sented as  such,  at  the  instance  of  the  claimants. 

It  may  be  that  persons  interested  in  these  bonds  are  now  present, 
and  I  therefore  wish  to  observe  that  it  is  matter  of  very  great  regret 
to  me,  as  I  doubt  not  it  is  to  a  large  majority  of  my  countrymen,  that 
these  bondholders  should  be  in  the  situation  in  which  they  now  find 
themselves.  I  am  acquainted  with  some  of  these  persons,  and  enter- 
tain sentiments  of  respect  for  their  talent  and  character ;  yet  I  cannot 
refrain  from  expressing  my  astonishment  that  men,  ordinarily  so 


CONVENTION   WITH    GREAT  BRITAIN. 


249 


eruraent 
timately 
iiraent  of 
banking 

(xists  on 
10  consti- 
s  to  pay 
;ation  to 

;  but  as 
as  niucb 
id  distin- 

and  her 
aason  for 

aal  prin- 
efore  the 
anner  in 
las  never 
as  at  no 
or  at  the 
England 
s  the  just 
for  the 
m  to  the 
ices,  it  is 
lider  it  a 
3een  pre- 

present, 
at  regret 
ncn,  that 
now  find 
nd  enter- 

I  cannot 
aarily  so 


sagacious  as  they  are  in  mercantile  operations,  sliould  have  been 
enticed  into  purchasing  the  bonds  of  the  Territory  of  Florida  as  obli- 
gations of  the  Uniteil  States,  and  still  more  that  this  transaction 
should  have  been  closed,  and  years  passed  by  without  one  single 
reference  having  been  made  to  tlic  liabilitv  of  the  i'oderal  government. 
How  this  is  to  be  accounted  for — whether  they  simply  failed  to  exer- 
cise that  caution  which  is  to  be  expected  of  any  one  when  investing 
his  money,  or  whether  they  were  induced,  by  the  temptation  of  high 
interest,  to  accept  bad  security — it  is  not  for  me  to  inquire ;  I  am  to 
show  that,  wliatever  be  the  cause  of  their  misfortune,  they  have  no 
claim  on  the  United  States  for  relief. 

Although  the  learned  counsel  for  the  bondholders  lias  stated  the 
case  to  the  commissioners,  I  must  beg  leave  also  to  submit  my  view  of 
the  manner  in  which  the  claim,  if  there  bo  one,  is  supposed  to  arise. 

Florida  was  ceded  by  Spain  to  the  United  States  the  22d  of  Feb- 
ruary, 1815),  in  full  property  and  sovereignty;  and  it  was  agreed  that 
the  inhabitants  thereof  should  be  incorporated  into  the  Union  as  soon 
as  consistent  with  the  principles  of  the  federal  Constitution,  and 
admitted  to  the  enjoyment  of  all  the  rights,  privileges,  and  immunities 
of  citizens  of  the  United  States.  The  authority  by  which  Congress 
proceeded  to  organize  a  territorial  government  will  be  found  in  the 
3d  section  of  the  4th  article  of  the  Constitution,  and  is  in  the  following 
words :  ' '  Congress  shall  have  power  to  dispose  of  and  make  all  needful 
rules  and  regulations  respecting  the  territory  or  other  property 
belonging  to  the  United  States." 

By  virtue  of  the  cession  and  this  provision  of  the  Constitution,  Con- 
gress authorized  the  President  to  take  possession  of  the  Territory,  and 
provide  for  its  government,  until  that  body  should  otherwise  order. 

In  1822  a  law  was  passed  by  Congress  establishing  the  territorial 
government  of  Florida,  which  was,  in  fact,  a  constitution  for  the  people 
of  the  Territory ;  and,  as  it  is  important  the  commissioners  should  fully 
understand  the  nature  of  that  constitutional  charter,  I  must  beg  leave 
to  refer  to  its  details. 

It  provides  for  the  appointment  by  the  President  of  a  governor,  in 
whom  the  executive  power  is  vested ;  and  he  is  clothed  with  the  usual 
executive  powers  possessed  by  the  governor  of  a  State.  A  secretary 
of  the  Territory  was  also  appointed  by  the  President.  The  legislative 
power  was  vested  in  the  governer  and  thirteen  discreet  persons,  inhab- 


.    I  . 


i     a 


4i' 


:'l 


f 


} 


250 


ADJUSTMENT  OP   CLAIMS    UNDER   THE 


itants  of  the  Territory,  called  the  legislative  council,  who  were  ap- 
pointed annually  by  the  President.  This  ])ody  had  power  to  alter  or 
repeal  the  laws  in  force  at  the  commencement  of  this  act,  and  pos- 
sessed, besides,  tlie  broad  and  comprehensive  power  "  to  legislate  mi  all 
rightful  subjects  of  legislation . ' ' 

The  governor  was  required  to  publish  throughout  the  Territory  all 
the  laws  passed  by  this  legislature,  and  on  or  before  the  first  day  of 
December,  in  each  year,  to  report  the  same  to  the  President  of  the 
United  States,  to  be  laid  before  Congress,  which  laws,  "  if  disaj^roved 
of  y  Congress,  should  theuaforth  he  of  no  force. ' '  This  is  tlie  provision 
of  the  charter  on  which  the  learned  counsel  for  the  bondholders  and 
the  British  government  has  founded  the  liability  of  the  United  States  ; 
but  before  considering  the  validity  of  his  argument  based  upon  it,  I 
wish  further  to  state  certain  provisions  of  the  laws  of  Congress  rela- 
ting to  the  government  of  the  Territory. 

In  this,  as  in  all  previous  territorial  governments,  the  legislature 
had  no  power  over  the  primary  disposal  of  the  soil,  nor  to  tax  the  lands 
of  the  United  States,  nor  to  interfere  with  the  claims  to  lands  within 
the  Territory. 

The  judicial  power  was  vested  in  two  superior  courts,  one  for  East 
and  one  for  West  Florida,  and  such  inferior  courts  as  the  legislative 
council  might  from  time  to  time  establish.  The  judges  were  under 
the  control  of  the  territorial  government,  and  were  required  to  take 
jurisdiction  of  all  cases,  civil  and  criminal,  arising  under  the  laws  of 
the  territory  then  in  force,  or  thereafter  to  be  enacted,  and  of  all  cases 
arising  under  the  Constitution  and  laws  of  the  United  States.  The 
laws  of  the  United  States  were  extended  to  the  Territory,  and  its 
existing  laws  declared  in  force  till  repealed  or  altered  by  its  legislative 
council ;  and,  like  all  former  territories,  Florida  was  authorized  to 
send  a  delegate  to  Congress. 

An  important  change  was  made  in  the  mode  of  appointing  the  legis- 
lative council  in  the  year  1826,  which  appears  to  have  been  wholly 
overlooked  by  Mr.  Gilpin,  the  American  counsel  for  the  bondholders, 
whose  printed  argument  has  been  ])resented  to  the  commission.  At 
that  period,  which  was  long  anterior  to  the  passage  of  the  territorial  laws 
out  of  which  this  debt  originated,  Congress  amended  the  constitutional 
charter,  so  as  to  give  to  the  people  the  annual  election  of  the  legisla- 


l 


'• 


re  re  ftp- 
alter  or 
nd  pofl- 
te  on  all 

itory  all 
it  day  of 
t  of  the 
pprovsd 
»rovi8ion 
ilers  and 
.  States  ; 
pon  it,  I 
ess  rela- 

Qjislature 
the  lands 
Is  within 

for  East 

gislative 

re  under 

to  take 

laws  of 

all  cases 

es.     The 

and  its 

gislative 

orized  to 

the  legis- 
n  wholly 
iholders, 
ion.  At 
)rial  laws 
itutional 
e  legisla- 


CONVENTION    WITH   GREAT   BRITAIN. 


251 


I 


•! 


tivc  council.  This  secured  to  tliein  the  means  of  governing  themselves 
in  the  most  complete  manner,  and  of  changing  any  memher  of  tlie 
C(mncil  who  did  not  act  conformahly  to  tlieir  wishes.  These  are  tlie 
CNsential  provisions  of  the  laws  of  Congress  iiii[)()rtant  to  he  stated  in 
this  connexion. 

We  have  thus  seen  that  Congress  created  for  the  people  of  the  terri- 
tory, not  an  agency,  as  Mr.  Gilpin  asserts  in  his  airgunient  in  hehalf 
of  the  bondholders,  a  government,  by  which  the  i)eople  could  execute 
their  purposes.  The  extent  and  nature  of  the  powers  embraced  in  the 
organic  law  show  that  it  was  a  government.  All  the  poM'ers  were 
conferred  which  are  usually  exercised  by  the  government  of  a  State. 
Process  ran  in  the  name  of  the  Territory,  and  it  had  complete  civil  as 
as  well  criminal  jurisdiction.  There  was  not  a  State  of  the  Union  more 
completely  sovereign  within  its  sphere,  for  it  possessed  the  express 
power  ''  to  legislate  on  all  rightful  subjects  of  legislation,'"  and  both 
in  the  States  and  Territories,  the  practice  of  fifty  years  had  settled 
that  the  power  of  granting  charters  of  incorj)oration  is  included  within 
this  legislative  authority.  No  one,  before  the  discovery  was  made  by 
Mr.  Gilpin,  ever  heard  of  an  agent  possessing  the  i)ower  of  life,  and 
liberty,  and  taxation  without  limit.  It  is  an  abuse  of  language  to  call 
the  organization  exercising  such  powers  an  agency.  All  the  writers 
agree  in  calling  that  which  performs  these  functions  a  government. 

In  pursuance  of  the  authority  derived  frpm  the  constitutional  char- 
ter— the  important  provisions  of  which  I  have  recited — the  legislative 
council,  soon  after  its  organization,  commenced  to  grant  charters  of 
incorporation  to  academies,  turnpike  road  companies,  and  other  neces- 
sary corporations  under  a  duly  organized  government.  This  continued 
to  be  done  for  more  than  ten  years,  during  which  period  upwards  of 
sixty  acts  of  incorporation  were  passed.  The  acts  under  Avhicli  the 
present  claim  is  said  to  arise  were  passed  at  the  session  of  the  legisla- 
tive council  held  in  1835 ;  and  I  shall  give  briefly  the  essential  provi- 
sions of  these  laws,  in  order  to  show  the  nature  of  the  obligations 
created  by  them.  In  that  year  the  legislative  council  enacted  a  law  to 
incorporate  the  subscribers  to  the  "  Union  Bank  of  Florida,"  with  a 
capital  of  one  million  of  dollars,  and  giving  the  privilege  of  increasing 
it  to  three  millions,  which  capital  was  to  be  raised  by  means  of  a  loan^ 
on  the  faith  of  the  Territory. 

The  owners  of  real  estate  situated  in  the  Territory  of  Florida,  and 


262 


ADJUSTMENT  OF   CLAIMS   UNDER   THE 


wlio  wcreiltizcnN  thorcot',  wore  the  only  jjcrsons  entitled  to  nubscribe  to 
the  stock.  To  Hocine  the  payment  of  the  interoHt  and  principal  of  the 
bonds  to  be  issued  l)y  the  Territory,  and  to  raise  the  capitnl,  the  sub- 
Horibcrs  to  the  stock  were  bound  to  give  bonds  and  mortgages  on  land 
andnegroes,a(  leaste(|ual  in  value  tothearnountof  thestock  taken.  The 
eliarter  furtlier  stated,  that,  in  order  to  facilitate  the  negotiations  of 
the  said  loan  by  the  bank,  the  faith  of  tlie  Territo-  •  was  thereby  pledged 
for  these^Mirityof  the  interest  and  ]>iiiici]>al  of  the  bonds,  so  authorized 
to  be  is'^ued,  payable  in  2'l,  20,  28,  and  ;{()  years,  respectively,  and 
bearing  an  interest  of  six  per  cent.  ])er  annum.  In  these  bonds  the 
Territory  acknowledges  its  in(lebtedne^s  to  the  Union  Mank  of  Flor- 
ida, and  promises  to  pay  to  the  order  of  the  jjresident  and  directors 
thereof  The  bonds  were  duly  executed  by  the  governor  and  treasurer  of 
the  Territory,  and  delivered  to  the  bank  to  be  negotiated.  The  surplus 
})rofits  of  the  bank  were,  after  paying  the  interest  and  exijcnses  of  its 
Tnanagenient,  to  be  retained  and  used  as  additional  cai)ital,  until  the 
amount  equalled  the  bonds  issued  to  procure  the  original  capital. 
Thereafter  the  legislature  might  direct  dividends  to  be  paid ;  one  moiety 
to  the  Territory  of  Florida,  in  consideration  of  the  aid  afforded  in  rais- 
ing the  cajtital  of  the  bank,  and  the  other  moiety  to  be  divided  among 
the  stockholders. 

About  the  same  time,  another  act  of  the  territorial  legislature  of 
Florida  incorporated  the  "Southern  Life  Insurance  and  Trust  Com- 
pany," with  a  capital  of  two  millions  of  dollars,  and  having  power  to 
increase  it  to  four  millions.  This  corporation  possessed  very  extensive 
trust  powers^  together  with  those  of  l)anking. 

In  order  to  enable  this  company  to  make  loans  and  discounts  beyond 
the  amount  of  its  capital,  it  was  authorized  to  issue  certificates  of  one 
thousand  dollars  each,  bearing  not  more  than  six  per  cent,  interest,  and 
redeemable  within  the  limits  of  the  charter,  which  was  for  fifty  years, 
at  such  time  as  the  governor  and  company  might  agree  upon.  It  was 
made  the  duty  of  the  governor,  by  this  law,  to  endorse  on  these  cer- 
tificates the  words,  '' guarantied  by  the  Territory  of  Florida,"  and  sign 
his  name  and  title  of  office  thereto,  and  return  them  to  the  company  ; 
and  the  faith  of  the  Territory  was  thereby  pledged  for  the  faithful  pay- 
ment of  said  certificates.  Mortgages  were  to  be  taken  on  personal  and 
real  estate,  as  a  security  for  the  payment  of  the  interest  and  principal 
of  the  Territory's  liabilities ;  and  in  case  of  the  default  of  the  company 


CONVENTION    WITH    GREAT   BRITAIN. 


263 


ibsci'ibo  to 
pal  of  the 
,  the  sub- 
}8  on  land 
ken.  The 
tidtions  of 
ly  pledged 
lutliorized 
Ivelv.  and 
bonds  the 
:  of  Flor- 
directors 
eaHnrerof 
le  surphiK 
I  SOS  of  its 
until  the 
I  capital, 
ne  moiety 
L'd  in  raifi- 
3d  among 

lature  of 
list  Corn- 
power  to 
Bxtensive 

8  beyond 
es  of  one 
rest,  and 
ty  years, 
It  was 
lese  cer- 
and  sign 
)mpany ; 
iful  pay- 
onal  and 
)rincipal 
3ompany 


f 


to  pay  interest  or  principal,  the  court  of  appeals  in  that  Territory  could 
issue  process  and  sell  property  or  choses  in  action  of  the  company  suf- 
ficient to  indemnify  the  Territory  against  loss.  The  company  had  the 
ordinary  power  of  corporations  of  suing  and  being  sued,  and  was  in 
all  respects  rendered  by  the  laws  of  the  Territory  legally  responsible. 

Under  these  territorial  laws,  both  the  Bank  and  the  Trust  Company 
sold  a  portion  of  these  obligations  in  the  United  States  and  in  Europe, 
and  commenced  business.  It  is  not  necessary  to  inijuire  how  long  it 
was  carried  on  ;  it  will  be  sufficient  for  my  present  purpose  to  state 
that,  after  the  lapse  of  a  few  years,  the  Trust  Company  could  not  pay 
the  interest  on  the  certificates,  nor  t'  ■  bank  the  interest  on  the  bonds, 
and  the  holders  of  them  applied  to  the  territorial  government  to  redeem 
its  pledge,  but,  under  various  pretexts,  it  also  refused  to  pay  it.  The 
State  of  Florida  has,  it  is  alleged,  acted  in  the  same  manner  in  regard 
to  these  obligations ;  and  as  that  State  has  been  admitted  into  the  Union 
without  any  provision  for  their  payment,  the  British  government  has 
brought  the  matter  before  this  commission,  and  asks  it  to  decide  that 
the  government  of  the  United  States  is  bound  to  pay  these  debts  of 
Florida.     I  shall  now  endeavor  to  show  that  no  such  obligation  exists. 

In  England  it  is  not  generally  understood  that  the  government  of 
the  United  States  is  one  of  limited  powers,  not  simply  restrained  by 
the  theoretical  checks  and  balances  of  one  branch  of  the  government 
upon  another,  but  its  boundaries  are  defined  by  a  written  instrument, 
which  every  member  of  it  is  sworn  to  support.  I  never  yet  have  met 
with  any  one  educated  under  the  governments  of  the  Old  World 
who  could  fully  appreciate  the  obligations  of  a  written  constitution, 
and  I  do  not  find  that  the  learned  counsel  who  opened  this  dis- 
cussion is  an  exception  to  tlie  rule.  The  Constitution  is  supposed  by 
them  to  be  a  creature  of  the  legislature,  which  may  be  varied  to  suit 
expediency.  Englishmen,  when  referring  to  the  Constitution  of  the 
United  States,  invariably  regard  it  as  having  the  same  adaptiveness  to 
suit  the  opinions  of  the  hour  as  the  British  Constitution,  which  is  a 
mere  form  of  government,  existing  in  the  traditions  and  history  of  the 
country,  in  no  two  minds  possessing  the  same  attributes,  and  under 
which  any  power  may  be  exercised. 

In  the  United  States  this  omnipotent  political  power  exists  nowhere 
in  an  organized  form.  It  is  retained  by  the  people.  When  we  speak 
of  the  Constitution  we  mean  a  writing,  a  great  fundamental  law,  which 


264 


ADJUSTMENT   OF  CLAIMS   UNDER  THE 


i 


prcscribi'8  tho  raunncr  in  which  the  public  autlio  >y  flhall  he  adininis- 
tered  ;  a  statute  paMsed  by  the  people  thenveiv . ' — that  true  s  nirce  of 
all  political  power — and  wherein  they  a<?ree  to  ,'ini/-eu  government 
and  define  its  powers.  Here  is  tlie  Constitution  ilHell',  the  iiihtrument 
by  which  tho  American  peo]»le  have  done  this;  and  it  is  written  in 
language  so  jdain  and  Himiile  that  any  one  who  reads  may  understand 
it.  Whoever  asks  for  the  exercise  of  a  power  by  the  government  of 
the  United  States  must  show  that  there  is  authority  for  what  lu-  seeks 
in  that  Constitution. 

I  cannot  too  strongly  impress  this  view  of  it  upon  the  minds  of  the 
commissioners.  So  influential  are  the  prejudices  of  education,  that 
Englishmen,  regarding  the  Parliament  as  all-powerful,  unconsciously 
act  upon  the  principle  that  the  government  of  the  United  States  is  pos- 
sessed of  the  same  powers  as  their  own.  This  is  a  fundamental  error. 
The  sources  and  the  amount  of  power  are  widely  different.  In  Eng- 
land, formerly,  all  power  was  vested  in  the  crown,  and  from  time  to 
time  it  has  yielded  to  Parliament;  while  in  the  United  States  it  bus 
ever  been  possessed  by  the  people.  In  forming  their  government,  they 
delegated  a  jutrtion  of  their  power  in  the  Constitution  of  the  United 
States,  to  be  exercised  for  the  good  of  the  whole.  So  far  they  consti- 
tuted themselves  one  nation.  Another  jxtrtion  they  retained;  and  tlie 
remainder,  which  is  by  fnr  the  largest  division  of  it,  they,  in  separate 
and  distinct  communities,  have  delegated  to  their  State  governments. 
Each  government — national,  State,  and  territorial — is  sovereign  within 
the  sphere  pointed  out  by  its  own  constitution,  but  has  no  authority 
beyond  it.  There  is  not,  then,  I  repeat,  in  the  United  States,  any  legis- 
lative body  sovereign  in  the  sense  in  which  that  power  is  exercised 
l>y  the  Britisl)  Parliament.  That  sovereignty  is  alone  to  be  found  in 
the  i)eople,  and  1  desire  this  distinction  to  l)okept  in  view  during  this 
discussion. 

This  being  the  true  exposition  of  the  government  of  the  United 
States,  let  us  examine  the  Constitution  and  see  what  powers  it  contains, 
whether  there  is  in  it  any  authority  to  pay  the  debts  of  Florida. 

In  the  eighth  section  of  the  first  acticle  of  the  Constitution,  the 
powers  of  Congress  are  enumerated,  and,  with  the  permission  of  the 
commissioners,  I  will  read  them. 

*'  1.  Congress  shall  have  power  to  lay  and  collect  taxes,  duties,  im- 
posts, and  excises,  to  pay  the  debts  and  provide  for  the  common  d(;- 
fence  and  general  welfare  of  the  United  States.     *        *        * 


ad  in  in  18- 
s  >uicc  of 
ornmeiit 
■ttrumcnt 
ritten  in 
dtTHtand 
[iinont  of 

ds  of  the 
ion,  that 
nsciously 
tt'8  is  pos- 
ital  error. 
In  Eng- 
1  time  to 
tea  it  has 
lent,  they 
le  United 
ey  const  i- 
:  and  the 
separate 
rnments. 
gn  within 
authority 
any  legis- 
exercised 
found  in 
liring  this 

10  United 
contains, 
ida. 

itiou,  tlie 
on  of  the 

uties,  ini- 
ainon  de- 


CONVENTION  WITH   GREAT   BRITAIN. 


265 


*•  2.  To  borrow  money  on  the  cre<lit  of  the  United  Hlate  . 
"  3.  To  reguhito  eonimerce  with  foreign  nations,  and  among  the  sev- 
eral States,  and  with  the  Indian  tribes.  " 

"  4.  To  establish^  uniform  rule  of  naturalization,  and  uniform  laws 
on  the  subject  of  bankruptcies  throughout  the  United  Htates. 

"5.  To  coin  money,  regulate  the  value  thereof,  and  of  foreign  coin, 
and  lix  the  standard  of  weights  and  measures. 

'*  0.  To  provide  for  the  punishment  of  counterfeiting  the  securitioB 
and  current  coin  of  the  United  States. 

"7.  To  establish  post  offices  and  post  roads. 

"8.  To  promote  the  progress  of  science  and  useful  arts,  by  securing, 
for  limited  times,  to  authors  and  inventors  the  exclusive  right  to  their 
respective  writings  and  discoveries. 

"9.  To  constitute  tribunals  inferior  to  the  Supreme  Court. 
"  10.  To  define  and  punish  piracies  and  felonies  committed  on  tho 
high  seas,  and  offences  against  the  law  of  nations. 

"11.  To  declare  war,  grant  letters  of  marque  and  reprisal,  and 
make  rules  concerning  captures  on  land  and  water. 

"  12.  To  raise  and  support  armies,  but  no  appropriation  of  money 
to  that  use  shall  be  for  a  longer  term  than  two  years. 
"  liJ.  To  provide  and  maintain  a  navy. 

"  H.  To  make  rules  for  the  government  and  regulation  of  the  land 
and  naval  forces. 

''  15.  To  ]»rovido  for  calling  forth  the  militia  to  execute  the  laws  of 
the  Union,  suppress  insurrections  and  repeal  Invasions. 

"16.  To  provide  for  organizing,  arming,  and  disciplining  the  mili- 
tia, and  for  governing  such  part  of  them  as  may  be  employed  in  the 
service  of  the  United  States,  reserving  to  the  States,  respectively,  the 
appointment  of  the  officers  and  the  authority  of  training  the  militia 
according  to  the  discipline  prescribed  by  Congress. 

"17.  To  exercise  exclusive  legislation  over  the  District  of  Columbia, 
and  places  purchased  for  the  use  of  the  general  governmenc ;  and, 

"  18.  To  make  all  laws  necessary  and  proper  for  carrying  into  execu- 
tion the  foregoing  powers,  and  all  other  powers  vested  by  this  Constitu- 
tion in  the  government  of  the  United  States,  or  in  any  department  or 
office  thereof." 

These  are  the  \  owers  of  Congress  in  which  the  authority,  if  it  exist, 
must  be  embraced.     We  have  seen  that  there  is  a  power  to  borrow 


( 


.;■■{ 


s? 


r-i  0 


U 


256 


ADJUSTMENT   OF   CLAIMS   UNDER  THE 


money  on  the  credit  of  the  United  States  and  pay  the  debts  of  the  na- 
tional government,  but  there  is  none  to  borrow  on  the  credit  of  a  Ter- 
ritory, or  to  pay  its  debts.  The  answer  of  the  learned  counsel  is,  that, 
by  the  law  under  which  the  territorial  government  was  organized,  the 
acts  of  Florida  were  to  be  laid  before  Congress,  which  body  had  the 
right  to  disapprove  of  any  territorial  law ;  and  that  not  having  done  so 
in  this  case,  the  act  of  the  Territory  becomes  the  act  of  Congress,  and 
hence  a  debt  of  the  United  States . 

The  requirement  in  the  law  of  Congress,  that  all  laws  passed  by  the 
territorial  legislature  should  be  reported  to  Congress,  and  if  disapproved 
by  that  body  should  thenceforth  he  of  no  force,  was  not  a  new  principle 
introduced  for  the  first  time  into  the  constitutional  charter  of  Florida. 
It  bad  been  equally  prominent  in  the  laws  for  the  organization  of 
every  territorial  government  from  the  establishment  of  the  Constitu- 
tion. The  ordinance  of  1787  for  the  government  of  the  northwestern 
territory,  contained  it ;  and  ever  since  that  period  it  has  been  copied 
from  that,  in  the  formation  of  new  territorial  governments,  yet  no  one 
ever  pretended  until  now  that  the  reservation  of  that  right  by  Con- 
gress rer^iered  the  United  States  liable  for  the  contracts  of  the  Territo- 
ries. Among  the  reasons  that  may  be  suggested  for  this  policy  was 
the  interest  of  the  whole  Union  in  the  public  lands,  and  it  was  deemed 
expedient  to  retain  the  authority  to  prevent  any  interference  with  them. 
Even  the  positive  assent  of  the  Congress  to  State  laws  of  incorporation, 
lias  not  been  held  to  bind  the  United  States  to  perform  the  obligations 
arising  under  such  laws.  This  is  well  known  to  all  persons  acquainted 
with  American  legislation.  In  1790,  Congress  assented  to  a  law  of 
Rhode  Island  incorporating  certain  ])ersons  by  the  name  of  the  River 
Macliine  Company,  and  in  1798,  to  a  law  of  Massachussetts,  incorpora- 
ting a  company  to  keei)  ^^  repair  a  pier  at  the  mouth  of  the  Kenne- 
beck  river.  Many  other  instances  might  be  cited  in  which  the  United 
States  expressly  consented  to  State  laws,  and  no  obligation  M-as  ever 
supposed  to  be  incurred  by  the  national  government.  If  none  is  as- 
sumed by  expressly  confirming  a  State  law,  the  United  States  cannot 
become  bound  by  simply  requiring  a  territorial  law  to  be  laid  before  Con- 
gress. It  was  merely  the  exercise  of  that  supervision  which  has  been 
practiced  for  three  quarters  of  a  century,  without  responsibility  for  the 
debts  of  Territories.  Every  State  in  the  Union  gives  to  certain  cor- 
porations the  power  to  contract  debts,  and  oftentimes  cities  are  re- 


CONVENTION  WITH   GREAT   BRITAIN. 


267 


s  of  the  na- 
lit  of  a  Ter- 
sel  is,  that, 
ganize(l,the 
)dy  had  the 
(ring  done  so 
(ngress,  and 

assed  by  the 
disapproved 
ew  principle 
r  of  Florida. 
;anization  of 
he  Constitu- 
lorthwestern 
been  copied 
8,  yet  no  one 
ight  by  Oon- 
[  the  Territo- 
H  policy  was 
t  was  deemed 
ewith  them, 
icorporation, 
e  obligations 
IS  acquainted 
I  to  a  law  of 
of  the  River 
:s,  incorpora- 
'  the  Kenne- 
h  the  United 
ion  was  ever 
f  none  is  as- 
tates  cannot 
d  before  Con- 
lich  has  been 
bility  for  the 
certain  cor- 
cities  are  re- 


quired to  submit  the  law  by  which  a  debt  is  contracted  for  the  affirm- 
ative approval  of  the  State  legislature ;  but  the  State  does  not  thereby 
become  bound  any  more  than  the  court  is  held  bound  for  the  conduct 
of  the  guardian  whose  appointment  it  had  app  'jved.  The  guardian's 
course  is  pointed  o.ut  by  law,  and  he  is  to  act  within  the  sphere  which 
it  assigns  to  him.  It  is  so  with  corporate  bodies.  Ours  is  literally  a 
government  of  corporations,  with  written  constitutions ;  and  the  prin- 
ciple that  their  power  is  complete  within  the  sphere  pointed  out  by 
these  constitutions  runs  through  the  whole.  The  doctrine  that  would 
hold  the  granting  power  responsible  for  tlieir  acts  would  not  only  be 
at  war  with  all  the  legislation  of  the  country,  but  presume  that  the 
American  people  know  nothing  of  the  laws  under  which  they  live. 

In  Mr.  Gilpin's  argument,  to  which  I  have  already  referred,  he 
asks  the  question,  whether  the  objection  taken  by  the  committee  of 
the  territorial  legislature,   "that  the  obligations  were  imposed  by 
those  who  were  in  fact,  and  in  law,  officers  of  the  United  States,  and 
not  of  the  people  of  Florida,  can  be  overlooked."    That  is,  Mr.  Gilpin 
means  to  assert  that  the  legislature  of  that  Territory  was  composed  of 
officers  of  the  United  States,  notwithstanding  the  members  of  it  were 
elected  annually  by  the  people,  and  were  in  every  respect  their  agents. 
The  governor,  who  constituted  the  remaining  part  of  the  legislature, 
was  not  ail  officer  of  the  national  government — he  was  an  officer  of 
the  Territory.     It  is  trne  he  was  appointed  by  the  President,  but  he 
could  not  be  governor  of  that  Territory  and  at  the  same  time  be  an 
officer  of  the  United  States.     There  is  no  such  office  as  governor  of  the 
United  States  known  to  the  laws  of  the  federal  government.     It  might 
more  reasonably  be  contended  that  the  governor  of  Canada,  or  any 
other  British  province,  is  a  governor  of  England.     Formerly,  the 
mayor  of  New  York  city  Avas  appointed  by  the  governor  of  that  State; 
and  according  to  this  argument  of  Mr.  Gilpin,  deriving  the  appoint- 
ment from  that  source,  would  make  the  chief  officer  of  the  city  the 
mayor  of  the  State.     I  apprehend  it  is  quite  a  mistake  to  suppose  that 
such  reasoning  can  influence  this  commission. 

It  can  hardly  be  an  objection  on  the  side  of  the  bondholders  that  the 
governor,  the  only  part  of  the  legislature  not  immediately  chosen  by 
the  people,  did  not  veto  the  bill,  but  permitted  the  will  of  the  people 
to  become  law.  The  objection  raised  by  the  governor  was  in  favor 
of  the  more  complete  sovereignty  of  the  people.     The  law  had  passed 

17 


•■* 


u 


1 


■  i 


258 


ADJUSTiMENT  OF    CLAIMS   UNDER   THE 


for  the  establishment  of  the  Union  Bank  requiring  the  express  sanc- 
tion of  Congress  before  taking  eifect,  and  on  this  provision  the  gover- 
nor of  the  Territory  (Duval)  observes:  "I  object  to  this  section  of 
the  bill,  because  it  is  not  essential  to  its  validity,  and  will  most  proba- 
bly defeat  the  measure.  Under  the  organic  laws  the  powers  of  legis- 
lation extend  '  to  all  rightful suhjects  of  legislation.'  Within  this  limit 
its  powers  of  legislation  are  complete  and  uncontrolled  in  the  in'tia- 
tory  enactment  of  a  law,  although  under  the  negative  retained  by  Con- 
gress it  may  declare  such  law  null  and  void.  This  negative,  however, 
neither  interferes  with  the  primary  exertion  of  the  legislative  action 
by  the  council,  nor  relieves  it  from  its  own  responsibility  in  the  exer- 
cise of  its  discretion.  Why  the  necessity  of  the  mortifying  admission 
that  the  legislative  council  of  Florida  feels  itself  incompetent  to  exer- 
cise the  powers  conferred  upon  it  by  its  charter^  or  reluctant  to  assume 
that  responsibility  which  duty  and  a  just  regard  for  the  rights  of  the 
citizens  of  Florida  impose.  In  passing  the  bill  the  coiincil  must  have 
assumed  that  it  came  within  the  legislative  sphere  of  its  powers  and 
rights,  and  was,  in  its  opinion,  required  by  the  interests  of  those  for 
whom  we  legislate.  Why,  then,  in  this,  more  than  any  other  case, 
seek  to  add  to  it  a  sanction  not  required  by  the  provisions  of  our  char- 
ter? Why,  to  give  effect  to  this  law,  require  an  express  assent,  when 
as  to  other  laws  they  are  deemed  perfect  and  valid  until  annulled  by 
ex])ress  negation  of  Congress?  In  the  most  important  of  all  laws, 
those  which  affect  the  liberty  or  life  of  a  citizen,  we  are  wont  to  rely 
upon  our  own  discretion  and  responsibility.  Of  all  the  charters  granted 
by  the  legislature  incorporating  banks  in  this  territory,  no  instance 
has  occurred  where  the  express  assent  of  Congress  was  required  before 
the  charter  could  become  a  law  ;"  and  he  adds,  "that  he  sees  no  good 
reason  for  departing  from  that  rule  in  this  case." 

By  this  course  of  reasoning  the  governor  satisfied  the  legislature  that 
they  ought  not  to  require  the  assent  of  Congress,  and  that  provision 
was  stricken  from  the  bill,  so  that  it  was,  in  fact,  passed  by  the  people 
themselves.  What  becomes,  then,  of  Mr.  Gilpin's  assertion,  that  this 
debt  was  created  by  tliose  wlio  were  ofHcers  of  the  United  States  ?  It 
is  wholly  without  foundation. 

The  mefesage  of  the  governor,  on  this  subject,  was  before  the  world 
when  these  bonds  were  sold,  as  well  as  the  previous  action  of  thelegis- 
jatyio  i:!  ;^  ;inting  upwards  of  sixty  charters  of  incorporation,  with  the 


*>. 


CONVENTION   WITH    GREAT   BRITAIN. 


259 


sane- 
;over- 
ion  of 
proba- 
legis- 
3  limit 
in'tia- 
y  Con- 
wever, 
action 
e  exer- 
iiission 

0  exer- 
assume 

1  of  the 
;st  have 
3rs  and 
lose  for 
er  case, 
ir  char- 
t,  when 
lUed  by- 
laws, 

10  rely 
;ranted 

instance 
before 

no  good 

urc  that 
■ovision 
people 
lat  this 


es 


It 


world 
le  Icgis- 
,'ith  the 


power  to  contract  debts,  and  it  was  not  imagined  that  these  were  acts 
of  the  federal  government  till  Mr.  Gilpin,  the  American  attorney  for 
the  bondholders,  announced  the  discovery.  But,  if  these  bonds  are 
obligations  created  by  officers  of  the  United  States,  so  are  the  debts  of 
turnpike-road  companies,  and  academies,  and  every  corporation  char- 
tered by  the  people  of  Florida.  And,  in  this  case,  which  does  not  differ 
in  principle  from  them,  it  was  entirely  an  after-thought,  and  totally 
unworthy  the  people  of  that  territory  to  attempt  to  i^hift  the  responsi- 
bility of  the  debt  which  they  had  deliberately  contracted  upon  the 
United  States.  Besides  its  own  faith,  it  is  now  contended  on  the  part 
of  the  claimants  that  the  territory  also  pledged  the  faith  of  the  federal 
government.  This  was  not  the  opinion  of  Governor  Eaton,  when  the 
act  to  incorporate  the  "Southern  Life  Insurance  and  Trust  Company" 
was  before  him  for  his  approval.  His  language  is  so  clear  and  conclu- 
sive on  this  point  that  I  must  beg  to  cite  a  portion  of  his  message  to  the 
legislature,  returning  this  bill,  and  suggesting  certain  alterations.  He 
says:  "  The  guaranty  of  a  State  or  Territory  is  nolhing  more  than  a 
mere  promise  to  do  a  particular  act.  There  is  no  compulsorn  authority 
xcherehy  the  fulfilment  of  the  promise  can  he  enforced;  it  is  hut  the  assu- 
rance of  plighted  faith,  though  it  is  that  which  the  sovereignty  making 
it  will  always  be  careful  to  redeem.  If,  then,  from  any  unforseeu  ca- 
sualty this  chartered  company  shall  fail  or  omit  to  discharge  its  incurred 
obligations,  a  liability  on  the  part  of  this  Territory  will  arise  ;  and  hence 
does  prudence  dictate  to  the  representatives  that  an  off'^^ed  guaranty 
of  the  public  faith  shall  n5t  be  carrio-'  beyond  a  point  of  safety  to  those 
whoso  interests  are  here  repre-ented." 

No  reference  is  here  made  to  tha  ptightcd  faith  of  the  United  States. 
Governor  Eaton  knew  that  there  vras  no  power  in  Congress  or  the  ter- 
ritorial legislature  to  pledge  tic  United  States  to  any  such  debt ;  and 
he  publicly  warned  the  legislature  and  the  people  oi'  the  territory,  if 
this  corporation  should  fail  to  discharge  its  obligations,  a  liability  on 
the  part  of  the  territory  would  arise.  With  this  solemn  warning  be- 
fore the  purchasers  of  these  securities,  it  is  idle  for  them  to  contend 
that  they  invested  their  money  in  them  under  the  expectation  that  the 
national  government  was  in  any  way  responsible  for  their  payment. 

If,  however,  other  ])roof  be  wanting  on  this  pc-int,  we  have  only  to 
look  back  to  the  price  of  United  States  stock  in  iiOndon  and  the  price 
of  Florida  bonv"^  at  that  time.     The  l*onds  of  the  Union  Bank  of  Flo- 


1;;  i 


m 


T"'!-*-!'-"-"- 


i^l 


260 


ADJUSTMENT   OF   CLAIMS   UNDER   THE 


rida  were  sold  at  ten  per  cent,  below  par,  while  the  United  States  stock 
was  selling  much  above  it.  In  the  face  of  this  notorious  fact  it  seems 
to  me  extraordinary  to  maintain  that  the  purchasers  of  these  Florida 
bonds  believed  they  were  guarantied  by  the  United  States. 

A  complete  confirmation  of  this  view  of  the  subject  is  afforded  by 
the  action  of  Great  Britain  in  regard  to  her  colonies.  Over  these  pos- 
sessions Parliament  has  much  more  control  than  Congress  exercises 
over  the  territories  of  the  United  States.  The  colonists  contract  debts 
and  make  loans  ;  and  although  these  acts  are  directly  approved  by  her 
Majesty's  government,  with  the  sanction  of  Parliament,  yet  the  Bri- 
tish empire  is  not  bound  for  their  payment.  On  this  point  I  desire  to 
submit  to  the  commissioners  a  bond  of  the  province  of  New  Brunswick, 
Avhich  I  have  before  me.     It  will  be  seen  that  the  form  of  the  bond 

runs  thus: 

"  PROVINCE  OF  NEW  BRUNSWICK. 

^^ Under  the  authority  of  the  legislature  of  Neiv  Brunswick. 

"  The  lieutenant  governor,  on  behalf  of  said  province  and  by  virtue 
of  the  authority  vested  in  him  by  an  act  of  the  general  assembly  of 
the  same,  entitled  '  An  act  to  facilitate  tlie  construction  of  a  railway 
from  St.  Andrews  to  Quebec,'  which  act  has  been  approved  and 
allowed  by  her  Majesty,  has  hereunto  set  his  hand  and  affixed  hi^ 
seal  of  office." 

This  bond,  as  wc  shall  hereafter  show,  is  similar  to  those  issued  by 
the  Territory  of  Florida  ;  and  when  the  reUition  of  the  colony  to  the 
imperial  government  is  considered,  it  certainly  ought  to  have  etiual 
excint  of  obligation.  Every  act  that  i.s  passed  by  the  colonies  is 
g^ssented  to  by  the  British  government ;  and  in  this  case  the  world  is 
notified  of  this  assent  by  its  being  expressed  in  tlie  bond.  Besides, 
the  law  was  i)assed  by  a  legislature,  two  branches  of  which — namely, 
the  governor  and  council — were  appointed  l>y  the  crown  ;  neverthe- 
less, it  is  nowhere  contended  in  England  that  the  debt  created  under 
this  law  by  the  issue  of  these  New  Brunswick  bonds  is  .M;uarantied  by 
the  British  government,  and  their  low  price  in  the  market,  in  com- 
parison with  a  loan  really  guarantied,  is  conclusive  on  this  point. 
This  case  being  within  the  knowledge  of  the  claimants,  it  is  remark- 
able that  they  should  come  before  an  intelligent  tribunal  and  ask  it 
to  say  that  the  United  States  guarantied  the  territorial  bonds  of 
Florida. 


CONVENTION   WITH   GREAT  BRITAIN. 


261 


;  stock 
seems 
'lorida 

led  by 
se  po8- 
lercises 
zt  debts 
.  by  ber 
be  Bri- 
esire  to 
n!>wick, 
le  bond 


)y  virtue 
jmbly  of 
railway 
ved  auel 
ixed  bis 

ssued  by 
y  to  tbe 
ve  equal 
onies  is 
world  is 
Besides, 
namely, 
levertbe- 
ed  under 
antied  by 

in  com- 
lis  point. 

romark- 
md  ask  it 

bondfc  of 


In  order  to  make  this  comparison  between  the  colonial  and  Florida 
bonds  still  more  clear  to  the  commissioners,  I  will  read  the  bond  from 
the  law  of  Florida  incorporating  the  Union  Bank.  It  is  in  these 
words :  .  . 

' '  ONE  THOUSAND   DOLLARS. 

^^Know  all  men  hij  these  presents,  That  the  Territory  of  Florida 
acknowledges  to  be  indebted  to  the  'Union  Bank  of  Florida'  in  tbe 
sum  of  one  thousand  dollars ;  which  sum  the  said  Territory  of  Florida 
promises  to  pay,  in  lawful  money  of  the  United  States,  to  the  order  of 

the  president,  directors,  antl  cbmi)any  of  the  said  bank,  on  the 

day  of ,  in  the  year  one  thousand  eight  hundred  and , 

with  interest  at  the  rate  of per  centum  per  annum,  payable  half 

yearly  at  the  place  named  in  the  indorsement  hereon,  viz :  on  the 

day  of ,  and  on  the day  of  every  year,  until  the 

payment  of  said  principal  sum. 

"In  testimony  whereof,  the  governor  of  the  Territory  of  Florida 
hath  signed,  and  the  treasurer  countersigned,  these  presents,  and 
caused  the  seal  of  the  Territory  to  be  affixed  thereto  at  Tallahassee, 

ti.is day  of ,  in  the  year  of  our  Lord . 

"A.  B.,  Governor 
"C.  D.,  Treasurer." 

There  is  not  in  this  bond  any  pledge  or  guaranty  by  the  United 
States,  and  no  intimation  that  it  has  ever  been  approved  by  their  gov- 
ernment. Is  it  not  plain,  according  to  the  British  construction  in  the 
case  of  the  New  Brunswick  loan,  and  for  a  much  stronger  reason,  too, 
that  there  can  be  no  liability  of  the  United  States  to  pay  this  bond  ? 
But  I  have  before  me  another  bond,  issued  by  the  government  of 
Canada,  to  which  I  would  call  attention : 

"PROVINCE  OF  CANADA. 

''Under  the  authority  of  the  parliament  of  the  province  of  Canada. 

' '  The  government  of  Canada 

Promises  to  pay  the  bearer 
The  sum  of  one  hundred  pounds  sterling, 

"Twenty-five  years  from  and  after  the  first  day  of  August,  one 
thousand  eight  linndred  and  forty-nine  ;  likewise  the  '  iterest  thereon, 


I  \\ 


uu 


-i  1 


I- .-I 


I ;  ! 


262 


ADJUSTMENT   OF  CLAIMS  UNDER   THE 


from  same  date,  at  the  rate  of  six  per  cent,  per  annum,  to  be  paid  half 
yearly  on  presentation  of  the  proper  coupons  for  the  same,  as  hove 
unto  annexed,  on  the  first  day  of  August  and  the  first  day  of  February 
in  each  year,  at  the  ofiice  of  the  Messrs.  Baring  Brothers  &Co., 
London. 

''Signed  and  dated  at  Montreal  this  fifteenth  day  of ,  one 

thousand  eight  hundred,  &c. 

[sEAii.]  '' ,  Iteceiver  General. 


a 


,  Inspector  General." 

This  bond  does  not  bind  the  imperial  government,  although  the 
law  for  its  creation  was,  under  the  authority  of  Parliament,  approved 
by  the  crown.  The  British,  like  every  other  government,  contracts 
by  express  stipulation ;  and  I  shall  now  show,  by  reference  to  another 
Canada  loan,  what  it  deems  necessary  \\\  order  to  bind  the  government 
to  pay  the  debt  of  the  colony.  It  ivili  then  be  readily  seen  that  no 
such  act  or  guaranty  was  given  by  the  United  iStates  in  the  case  of 
the  Florida  bonds.  Here  is  the  bond  to  wliich  I  refer.  It  is  in  the 
following  words : 

"PROVINPt;  OF  CANADA. 
"  Guarantied  Loan, 
' '  Under  the  authority  of  an  act  of  the  imperial  Parliament  of  the 
United .  Kingdom  of  Great  Britain  and  Ireland,  passed  in  the  sixth 
year  of  her  Majesty's  reign,  entitled,  '  An  act  for  guarantying  the 
payment  of  the  interest  on  a  loan  of  one  million  five  hundred  thousand 
pounds,  to  be  raised  by  the  province  of  Canada,'  and  of  an  act  of  the 
legislature  of  the  province  of  Canada,  passed  in  the  same  year,  entitled, 
'  An  act  to  authorize  the  raising,  by  way  of  loan  in  England,  the  sum 
of  one  million  five  hundred  thousand  pounds  sterling,  for  the  con- 
struction of  certain  public  works  in  Canada,'  this  debenture  entitles 
the  bearer,  vv,  ontv  years  after  the  date  hereof,  to  the  sum  of  five  hun- 
dred pounus,  lawful  money  of  Great  Britain;  likewise  to  interest 
thereon,  at  fhe  rate  of  £4  percent,  per  annum,  payable  half  yearly  in 
London,  at  the  Bank  of  England,  on  presentation  of  the  proper  coupon 
for  the  same,  uamely,  £2  per  cent,  on  the  1st  of  July,  and  £2  per 
cent,  en  the  1st  of  January,  iu  each  year ;  the  same  being  charged 
on  the  consolidated  revenue  fund  of  the  said  province  of  Canada,  next 
after  the  cliarges  made  thereon  by  law  at  the  time  of  the  passing  of  t  \x 


C30NVENTI0N  WITH   GREAT   BRITAIN. 


263 


said  act  of  the  piovince  of  Canada,  and,  imtil  the  said  principal  sum 
be  repaid,  the  said  interest  is  guarantied  by  her  JIajesty  on  the  con- 
solidated fund  of  the  United  Kingdom  of  Great  Britain  and  Ireland 
under  the  authority  of  the  said  act  of  the  imperial  Parliament. 

"Dated  Treasury  Chambers,  Whitehall,  this  2d  day  of  January, 
1853. 

''HENRY  GOULBURN, 
"A.  PRINGLE, 
''HENRY  BARING, 

"Being  three  of  the  commissioners  of  the  treasury,  duly  appointed 
by  her  Majesty  to  raise  the  said  loan." 

This  is  an  obligation  which  binds  the  British  government.  It  is  so 
expressed  on  its  face,  and,  in  consequence,  it  was  negotiated  on  mucli 
better  terms  than  the  unguarantied  bond  of  Canada.     The  guarantie 


.'li 


loan  bears  four  per  cent,  interest,  while  that  which  is  not  bears  an 
interest  of  six  per  cent.  If  the  United  States  had  guarantied  the 
Florida  bonds,  they  would  have  done  it  in  a  similar  form  bylaw,  and 
the  price  of  them  would  then  have  been  at  least  equal  to  that  of 
United  States  stock  selling  in  London  at  the  same  time.  But  the 
federal  government  never  in  any  way  acted  on  or  approved  of  the 
Florida  loan,  and  the  bonds  of  that  Territory  sold  in  London,  con- 
sidering the  interest  allowed,  at  about  ten  per  cent,  below  par,  while 
the  stock  of  the  United  States  sold  above  it.  Under  no  circumstances 
could  clearer  proof  be  given  that  the  purchasers  of  the  Florida  bonds 
knew  that  the  United  States  government  was  not  liable  for  their  pay- 
ment. 

It  is  alleged  by  Mr.  Gilpin  that  Congress  knew  the  nature  of  these 
charters  before  the  bonds  were  sold  and  the  money  paid.  Suppose 
this  to  be  true ;  did  the  United  States  become  responsible  by  declining 
to  interfere  with  the  people  of  Florida  in  governing  themselves  ?  Mr. 
Gilpin  says  that  obligation  arose,  because  "the  action  of  the  territo- 
rial legislature  from  first  to  last  was  the  action  of  Congress.  In  no 
constitutional  aspect  had  that  legislature  any  autliority  except  as  the 
agent  or  on  behalf  of  Congress."  If  this  be  true,  then  not  only  the 
laws  for  the  creation  of  the  Union  Bank  of  Florida,  and  the  Southern 
Life  Insurance  and  Trust  Company,  are  laws  of  the  United  States,  but 
c  very  other  act  of  that  Territory  will  have  the  same  force  and  extent 


'  Hi 


'Fi 


4 
1 


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264 


ADJUSTMENT   OF  CLAIMS  UNDER   THE 


I  ' 


of  operation.  If  Congress  can  delegate  its  power  to  a  Territory  to 
enact  laws  for  the  whole  Union,  it  may  authorize  these  corporations 
or  their  presidents  to  do  so  ;  and,  instead  of  having  a  limited  govern- 
ment in  the  United  States,  we  should  at  once  be  launched  into  an  un- 
defined region  of  power  where  no  free  government  (.ould  exist.  Even 
in  England,  where  the  Parliament  enjoys  political  omnipotence,  what 
would  be  said  if  it  should  grant  to  the  Bank  of  England  power  to  pass 
laws  for  the  British  Empire?  Who  would  not  call  it  usurpation — a 
violation  of  the  Constitution?  yet  this  commission  is  asked  to  inter- 
polate this  power  into  the  free  and  written  Constitution  of  the  United 
Stat  18.  Mr.  Gilpin  is  a  lawyer,  and  has  been  Attorney  General  of 
the  United  States,  and  it  is  the  more  surprising  that  he  should  have 
been  induced  to  claim  such  a  power  for  Congress. 

No  one  contends  in  America,  nor  do  I  suppose  tlie  learned  counsel 
for  her  Majesty's  government  would  maintain,  that  the  law  of  a  ter- 
ritorial government  has   any  force  beyond   it.s   boundaries.      If  he 
would  not,  then  he  surrenders  the  whole  case,  because  this  proves 
that  the  action  of  the  territorial  legislature  is  not  the  action  of  Con- 
gress.    Every  act  passed  by  Congress  is  a  law  of  the  United  States  ; 
and  if  the  acts  of  Florida  were  laws  of  the  Union,  thev  would  have 
force  and  effect  beyond  the  boundaries  of  that  Territory,  anywhere 
within  the  limits  of  the  federal  jurisdiction.     It  is  well  settled  that 
Congress  cannot  resolve  itself  into  a  legislature  for  particular  localities. 
In  the  case  of  Cohens  v.  Virginia,  it  was  held  by  the  Supreme  Court 
that  a  law  for  the  District  of  Columbia,  or  any  other  place  for  which 
Congress  could  legislate,  was  a  law  for  the  whole  country,  and  its 
obligations  commensurate  with  it.     Thi."  will  be  found  to  be  fully  sus- 
tained in  all  the  American  courts,  and  has  received  special  confirma- 
tion in  fourth  Gill  and  Johnson's  Maryland  Reports,  page  135.    Any 
act  necessary  to  be  done  to  carry  the  law  of  Congress  into  effect,  may 
be  performed  in  any  part  of  the  United  States.     In  executing  the  laws 
of  the  territorial  government  this  could  not  be  done.     Process  ran  in 
the  nf;me  of  the  people  of  the  Territory,  and  was  stojjped  by  the  boun- 
daries thereof,  and  hence  the  law  under  which  it  issued  could  not  be  a 
law  of  the  United  States. 

But  the  Constitution  .settles  this  ([uestion  beyond  all  controversy, 
and  I  hasten  to  point  out  its  provisions  to  the  commissioners.  The 
first  section  of  the  first  article  is  perfectly  conclusive,  and  is  in  these 


CONVENTION   WITH    GREAT  BRITAIN. 


265 


ran  in 

boun- 

ot  be  a 


words :  **  All  legislative  powers  herein  granted  shall  be  vested  in  a 
Congress  of  the  United  States,  which  shall  consist  of  a  Senate  and 
House  of  Re}  esentatives."  The  power  to  make  laws  is  not  vested  in 
Congress  and  the  Territory  of  Florida,  but  in  a  Congress  composed  in 
a  particular  manner,  viz :  of  a  Senate  and  a  House  of  Representatives. 
Could  the  members  of  Congress^  after  having  sworn  to  support  this 
Constitution^  undertake  to  vest  the  legislative  power  in  a  totally  dis- 
tinct government  ?  If  the  suggestion  of  such  a  thing  had  come  from 
one  unaccustomed  to  the  obligations  of  a  written  constitution,  it  would 
not  have  been  so  astonishing,  for  neither  in  England,  nor  anywhere 
else  out  of  thp  United  States,  does  there  seem  to  exist  any  correct  ap- 
])reciatioil»  of  the  obligations  of  a  written  constitution  ;  but  for  it  to 
be  asserted  by  one  who  has  held  a  high  position  in  the  government  of 
the  United  States,  I  confess,  amazes  me,  and  1  can  only  attribute  it 
to  over-wrought  zeal  in  advocating  the  cause  of  his  clients. 

The  Constitution  does  not  merely  prescribe  that  the  legislative  power 
shall  be  vested  in  a  Congress  of  the  United  States,  consisting  of  a 
Senate  and  a  House  of  Representatives,  but  it  defines  the  manner  in 
which  each  House  .shall  be  constituted.  ' '  The  House  of  Representatives 
shall  be  composed  of  members  cliosen  every  second  year  by  the  people 
of  the  several  States,"  and  it  besides  prescribes  the  qualifications  of  the 
representatives  and  electors.  "The  Senate  of  the  United  States  shall 
be  composed  of  two  senators  from  each  State,  chosen  by  the  legislature 
thereof. ' '  Each  House  is  to  determine  the  rules  of  its  proceedings  ; 
and  among  those  rules  it  is  required  that  every  bill  shall  be  read  three 
times  in  each  House,  and  on  different  days,  unless  otherwise  ordered  ; 
and  the  Constitution  further  requires  that  it  shall  afterwards  be  ap- 
proved by  the  President  before  taking  efiect.  What  purpose  can  there 
be  in  limiting  the  powers  of  legislation  to  Congress,  if  it  can  vest  that 
power  in  another  body  wholly  unknown  to  the  Constitution?  If  Con- 
gress may  associate  the  territorial  legislature  as  a  co-ordinate  branch 
of  the  law-making  department,  it  may,  as  I  have  previously  said,  in- 
vest the  Union  Bank  of  Florida,  or  the  British  Parliament,  with  the 
same  power;  and  we  shall  then  find  that,  instead  of  being  independent, 
we  are  still  subjects  of  the  British  crown. 

But  the  learned  counsel's  position  is,  tliat  this  act  of  Florida  was 
made  a  law  of  Congress  by  that  body  having  declared  that  the  acts  of 
the  legislative  council  should  be  laid  before  it.     This  would  be  doing 


'  '■ 


266 


ADJUSTMENT   OF  CLAIMS   UNDER   THE 


1 


If 


that  indirectly  which  Congress  cannot  do  directly.  It  cannot  vest  the 
legislative  power  in  the  territorial  government ;  nevertlielcss  the  coun- 
sel maintains  that  it  may  give  to  that  Territory  authority  to  pass  laws 
which  Congress  can  silently  acfiuiesco  in,  and  make  them,  by  that  mode, 
laws  of  the  United  States.  Such  a  doctrine  can  never  find  favor  in  the 
mind  of  one  accustomed  to  a  written  constitiri  >n,  and  which  the  mem- 
bers of  the  government  are  sworn  to  support.  J'iie  United  States  gov- 
ernment expresses  its  will,  as  I  have  already  shown,  only  by  act  of 
Congress  or  by  treaty,  both  of  which  must  l)e  passed  in  proscribed 
forms.  Tiiey  can  be  bound  in  no  other  wav  and  none  of  these  forms 
have  been  complied  with  in  creating  the  debt  of  Florida. 

It  is  asked  by  Mr.  Gilpin  .  "  Where  was  the  authority  of«the  Terri- 
tory of  Florida  to  grant  charters  of  incorporation  ?  "  That  question 
is  answered  by  the  law  of  Congress  organizing  the  territorial  govern- 
ment. By  that  law  it  was  expressly  authorized  "to  legislate  on  all 
rightful  subjects  of  legislation,"  and  to  grant  charters  of  incorporation 
was  everywhere  acknowledged  to  come  within  that  power.  The  terri- 
torial government  was  in  all  respects  similar  to  the  government  of  a 
State,  which,  without  any  express  authority,  exercises  this  power;  and 
surely^  under  a  specific  grant  "  to  legislate  on  all  rightful  subjects," 
the  Territory  may  exercise  it.  The  States  of  the  Union  have  far  more 
unlimited  powers  than  those  of  the  general  government,  though  they 
are  not  kucIi  that  foreigners  so  often  feel  their  operation.  Since  the 
uutliority  of  a  Territory  is  analogous  to  that  of  a  State,  we  have  but 
to  see  what  this  is  in  order  to  determine  that  possessed  by  the  territo- 
rial government.  Congress  can  only  exercise  those  powers  expressly 
granted  in  the  Constitution  of  the  United  States,  or  which  may  be 
necessary  and  proper  to  carry  these  powers  into  eiFect ;  whereas  a  State 
may  do  everything  which  it  is  not  forbidden  to  do  by  its  own  constitu- 
tion, or  by  that  of  the  United  States.  A  State  is  not  prohibited  from 
incorporating  banks  and  granting  other  charters ;  and  hence,  under  the 
general  right  of  sovereignty,  this  power  has  l)een  exercised.  The 
State  derives  the  authority  to  create  corporations  from  its  inherent 
sovereignty.  That  sovereignty  is  embraced  in  the  power  ''to  legislate 
on  all  rightful  subjects  of  legislation,"  and  which  is  expressly  granted 
to  tlie  Territory.  It  may,  therefore,  by  virtue  of  this  grant,  do  that 
which  the  State  claims  the  right  to  do  without  it. 

Fortunately,  this  question  does  not  depend  on  any  reasoning  of 


[t  cannot  vest  the 
rthelcss  the  coun- 
ority  to  pass  lawt, 
3m,  by  that  mode, 
M-  find  favor  in  the 
d  wliich  the  mem- 
Juitcd  States  gov- 
,'n,  only  by  act  of 
sed  in  prescribed 
me  of  those  forms 
rida. 

ority  of«the  Torri- 
"     That  question 
territorial  govern- 
to  legislate  on  all 
rs  of  incorporation 
power.     The  terri- 
e  government  of  a 
es  this  power ;  and 
rightful  subjects," 
nion  have  far  more 
inent,  though  they 
ration.     Since  the 
Itate,  we  have  but 
ised  by  the  territo- 
i  powers  expressly 
,  or  which  may  be 
;  whereas  a  State 
y  its  own  constitu- 
lot  prohibited  from 
id  hence,  under  the 
n  exercised.     The 
from  its  inherent 
)ower  'Ho  legislate 
expressly  granted 
this  grant,  do  that 

any  reasoning  of 


CONVENTION    WITH    GREAT   BRITAIN. 


267 


mine,  however  satisfactory  to  myself  It  has  been  settled  by  one  of 
the  liighest  judicial  trihiinals  in  the  United  States.  In  the  case  of 
Williams  v.  the  Bank  of  Michigan,  reported  in  7  Wendell,  p.  531), 
tlie  court  of  errors  in  New  York  adjudj,'t(l  that  the  j)uwer  to  incorpo- 
rate a  bank  was  within  tiic  scope  of  the  general  powers  of  territorial 
legislation  conferred  by  the  act  of  Congresn,  This  was  the  unanimous 
opinion  of  the  court,  although  there  was  not  in  the  ortijanization  of  the 
Michigan  legislature  that  expression  of  the  pi'imlar  will  which  Mr. 
(lilpin  seems  to  regard  as  so  essential  to  the  viilidity  of  an  act  of 
incorporation.  The  governor  and  the  members  of  that  legislature  were 
appointed  by  the  Tresidcnt,  and  their  acts  laid  licfurt  Congress,  as  in 
the  case  of  Florida.  In  giv'ng  his  opinion.  Judge  Deardsley  ob.servi>'T 
on  tliis  case,  "that  the  hiiuk  is  been  cn^ated  by  an  authority  which 
to  us  may  be  regarded  as  an  -nendent  government.  '  In  anotlier 
case,  reported  in  5th  Wendell,  p.  481,  ]\Ir.  John  C.  Spencer,  one  of 
the  most  distinguished  lawyers  in  America,  said:  "The  territorial 
governments  were  alone  to  judge  of  tlie  expediency  of  the  laws  to  be 
adopted;  and  when  adopted,  until  disajiproved,  they  are  in  force." 

It  being  established,  then,  that  the  legislative  council  had  power  to 
grant  charters  of  incorporation,  Mr.  Uilpin  admits  in  liis  pamphlet,  on 
page  3(5,  that  these  banks  were  the  agents  of  the  Territory.  Notwith- 
standing these  judicial  decisions  were  within  the  reach  of  Mr.  Gilpin, 
and  probably  within  his  knowledge,  he  still  asks  by  what  expression 
of  the  popular  will  was  this  action  of  the  territorial  legislature  sanc- 
tioned, as  if  that  were  necessary  to  render  the  act  legal.  This  condi- 
tion which  he  requires  was,  however,  fulfilled.  It  was  approved  of 
by  the  people's  representatives,  who  were  chosen  annually,  hy  universal 
suffrage.  The  opportunity  was  thus  afforded  to  express  their  disap- 
proval of  any  measure  of  the  legislature  at  the  ballot-box.  This  they 
did  not  do.  It  was  not  till  long  after  the  organization  of  these  banking 
institutions — after  the  money  had  been  borrowed  and  partly  squand- 
ered— that  the  people  objected  to  the  measure.  Then  was  sent  forth 
that  expression  of  the  popular  will  that  the  debt  is  not  to  be  paid  by 
the  people  of  Florida.  I  confess  that  I  have  not  the  same  respect 
for  this  expression  of  the  popular  will  that  it  seems  to  command  in 
the  mind  of  Mr.  Gilpin.  If  the  debt  was  legally  contracted,  the  people 
of  Florida  ought  to  pay  it.  I  am  aware  that  it  is  contended  on  the 
part  of  Florida  that  at  least  a  portion  of  the  bonds  were  sold  contrary 


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ADJUSTMENT   OF   CLAIMS  UNDER  THE 


to  the  provisions  of  the  law ;  on  that  point  I  do  not  intend  to  Express  any 
opinion.  For  the  purposes  of  this  discussion  I  am  willing  to  assume 
that  the  law  was  complied  with,  and  then  deny  that  the  United  States 
can  be  held  responsible.  But  the  objection  raised  on  behalf  of  Florida 
certainly  does  not  apply  to  the  whole  debt,  and  the  repudiation  of  that 
which  is  just  receives,  I  have  no  doubt,  that  condemnation  of  the 
American  people  which  it  deserves. 

Mr.  Gilpin  refers  to  the  clause  of  the  Constitution  which  authorizes 
Congress  to  make  rules  and  regulations  for  the  government  of  the  Ter- 
ritories, and  observes :  ' '  The  rules  and  regulations  which  Congress 
makes  are  constitutional,  but  not  so  are  those  of  any  other  body.  Con- 
gress may,  and  necessarily  must,  act  through  its  agents;  it  may  con- 
stitute the  territorial  legislature,  or  governor,  or  other  functionary, 
such  agent;  but  their  acts  are  the  acts  of  the  principal,  if  the  agent 
has  not  gone  beyond  the  limits  of  the  delegated  powers.  The  creation 
of  these  was  within  the  powers  of  the  territorial  legislature,  as  con- 
firmed by  Congress ;  it  is,  therefore,  an  act  of  the  principal,  even  if  not 
ratified  by  that  principal."  These  words  were,  perhaps,  never  before 
arranged  to  violate  such  a  well-known  principle  of  government.  I 
have  shown,  by  judicial  authority,  entitled  to  the  highest  consideration, 
that  the  creation  of  these  obligations  was  within  the  powers  of  the 
territorial  legislature,  without  any  confirmation  by  Congress.  Not- 
withstanding this  authority,  Mr.  Gilpin  maintains  that  the  legislature 
may  create  a  corporation  whose  by-laws  and  all  the  acts  for  its  inter- 
nal regulations  and  government  are  not  constitutional  nor  valid,  except 
as  the  agent  of  the  legislature  creating  it ;  and  hence  its  acts  become 
laws  of  the  State.  This  egregious  error  results  from  misapprehending 
the  nature  of  the  territorial  government.  It  was  not  the  agent  of  Con- 
gress, but  the  agent  of  the  people  of  Florida.  It  was  appointed  by 
them,  annually,  and  received  its  instructions  from  them;  and  they  are 
the  principal,  and  not  Congress.  On  the  people  of  that  Territory  does 
the  responsibility  rest ;  and  although  they  may  not  have  held  their 
representatives  to  a  very  strict  accountability,  nevertheless  it  was  the 
act  of  the  people  of  Florida,  by  their  chosen  representatives,  an  inde- 
pendent society  acting  for  itself,  and  those  who  purchased  these  obli- 
gations must  look  to  Florida  to  fulfil  them.  If  the  territorial  govern- 
ment was  guilty  of  acts  of  imprudence  and  folly,  persons  investing  their 
money  should  have  looked  to  it.    The  rule  of  caveat  emptor  is  generally 


CONVENTION   WITH   GREAT   BRITAIN. 


269 


;ss  any 
issume 
,  States 
Florida 
of  that 
of  tte 

horizes 
he  Ter- 
ongress 
,     Con- 
ay  con- 
tionary, 
le  agent 
creation 
as  con- 
jn  if  not 
jr  before 
lent.     I 
eration, 
8  of  the 
I.     Not- 
jislature 
ts  inter- 
except 
become 
hending 
of  Con- 
inted  by 
they  are 
ory  does 
Id  their 
was  the 
an  inde- 
ese  obli- 
govern- 
ing  their 
;enerally 


present  to  the  minds  of  capitalists ;  and  if  they  did  not  regard  it  in  pur- 
chasing the  bonds  of  Florida,  I  am  unable  to  perceive  what  justice 
there  is  in  shifting  the  consequences  upon  the  government  of  the  United 
States. 

The  learned  counsel  who  opened  this  discussion  placed  the  claim 
*'upon  the  principles  of  equity,  reason,  and  public  morals."    To  what 
kind  of  equity  does  he  refer?     Certainly  not  to  that  which  has  been, 
or  ever  can  be,  administered  by  human  tribunals.    He  has  in  his  mind 
a  transcendental  equity  which  it  belongs  not  to  man  to  administer. 
If  it  be  legal  equity  to  which  he  alludes,  why  has  not  this  claim  been 
brought  before  the  courts  of  the  United  States  ? — for  it  is  alleged  that  it 
arises  under  a  law  of  the  Territory  which  has  become  a  law  of  Con- 
gress.    The  Constitution  declares  "the  judicial  power  shall  extend  to 
all  cases  in  law  and  equity  arising  under  the  Constitution  and  laws  of 
the  United  States;"  and  if  a  question  does  so  arise,  the  Supreme  Court 
have  held  that  they  must,  in  some  form,  have  jurisdiction,  whoever 
may  be  the  parties;  yet  in  no  way  has  this  case  been  brought  up  for 
adjudication.     The  claimants  admit  in  their  memorial  that  the  United 
States  courts  have  no  jurisdiction  of  the  case.     How,  then,  can  it  arise 
from  a  law  of  Congress,  or  be  a  case  of  equity  in  any  sense  known  tc 
the  English  or  American  law?     The  claimants  say,  because  they  had 
a  legal  remedy,  and  that  Congress  has  taken  it  away  by  the  admission 
of  Florida  into  the  Union  as  a  State.    What  remedy  had  the  claimants 
against  the  territorial  government  which  they  have  not  against  the 
State  of  Florida?    They  could  not  sue  the  Territory  in  its  own  courts, 
and  there  is  no  jurisdiction  of  such  a  suit  given  to  the  courts  of  the 
United  States.     This  must  have  been  understood  by  the  claimants 
when  they  purchased  the  bonds.     We  have  seen  in  the  message  of 
Governor  Eaton,  returning  to  the  legislative  council  the  "Southern 
Life  and  Trust  Company's' '  charter  for  alteration,  that  he  said :  "The 
guaranty  of  a  State  or  Territory  is  nothing  more  than  a  mere  promise 
to  do  a  particular  act.     There  is  no  compulsory  authority  whereby  the 
fulfilment  of  the  promise  can  be  enfm'ced;  it  is  but  the  assurance  of 
plighted  faith."     This  view  of  the  Territory's  obligations,  and  the 
warning  that  no  remedy  existed  against  it,  was  before  the  world,  and 
has  not  been  controverted.     The  learned  counsel  himself  has  not  even 
attempted  to  support  the  assertion  of  the  memorial,  that  we  have 
taken  away  the  remedy  of  the  claimants.   The  equity,  then,  demanded, 


-I" 


^ 


270 


ADJUSTMENT   OF  CLAIMS   UNDER   THE 


i 


III 


'11 


l\ 


is  that  which  has  heretofore  been  too  subtle  for  courts  of  justice,  and 
the  case  is  brought  before  this  commission  under  the  supposition  that 
it  is  endowed  with  superhuman  power.  The  transcendental  argument 
which  the  learned  counsel  constructed  on  the  broad  basis  of  equity, 
reason,  and  public  morals,  must,  then,  fall  to  the  ground. 

The  distinguished  names  of  Chancellor  Kent  and  Mr.  Webster  have 
been  introduced  into  this  discussion  by  the  learned  counsel  for  her 
Majesty's  government.  Their  opinions  are  entitled  to  the  highest 
consideration  everywhere,  and  no  one  bows  to  them  with  more  pro- 
found respect  than  I  do ;  but  I  confess  that  I  cannot  perceive  the  bear- 
ing of  the  opinions  cited  upon  the  matter  before  the  commission.  It 
appears  that  certain  persons  who  were  negotiating  for  the  purchase  of 
these  bonds,  or  who  were  already  interested  in  them,  desired  to  know 
whether  Congress  could  repeal  the  laws  of  the  territorial  government 
by  which  the  debt  was  created,  and  the  opinions  of  these  distinguished 
jurists  satisfied  them  that  they  run  no  risk  on  that  score,  though  Mr. 
Webster  said  Congress  had  the  power  to  annul  them.  If  anything  is 
to  be  built  upon  this  dictum  attributed  to  Mr.  Webster,  I  must  deny 
any  such  authority  in  Congress.  The  Constitution  does  not,  in  terms, 
prohibit  Congress  from  passing  any  law  impairing  the  obligation  of 
contracts,  though  it  does  so  in  effect.  It  has  been  shown  in  the  course 
of  these  observations  that  Congress  can  exercise  no  power  which  is  not 
expressly  delegated  to  it,  or  which  is  n  ?t  necessary  and  proper  to  carry 
into  effect  the  granted  powers.  The  power  to  impair  the  obligation 
of  contracts  is  nowhere  expressly  granted,  and  it  can  never  be  neces- 
sary or  proper  to  attain  any  end  of  government ;  and  hence  it  is  alto- 
gether against  the  Constitution  to  claim  for  Congress  either  the  power 
or  right  to  impair  the  obligation  of  a  contract,  or,  in  other  words,  to 
do  injustice.  No  such  authority  has  ever  been  set  up  by  it.  It  did 
require,  in  1836,  that  all  futtirc  charters  granted  by  the  Territory 
should  be  ajiproved  by  Congress  before  taking  effect;  but  tlitre  was  no 
intimation  that  the  past  action  of  the  Territory  could  be  undone. 

Mr.  Gilpin  says,  ''that,  with  a  full  knowledge  of  the  insolvency  of 
the  corporations,  and  the  certainty  that  only  by  taxation  could  either 
the  interest  or  the  principal  of  these  obligations  be  paid  to  the  holders, 
a  clause  was  introduced  into  the  State  constitution  prohibiting  taxation 
after  Florida  should  become  a  State,  except  for  the  necessary  expenses 
of  the  State  government.     To  this  prohibition  of  taxation  Congress 


CONVENTION   WITH   GREAT  BRITAIN. 


271 


igation 
neces- 
is  alto- 
power 
)vds,  to 
It  did 
srritory 
was  no 
le. 

ency  of 

either 

olders, 

xfttion 

penses 

bngress 


assented,  and  further  stipulated  that  for  no  purpose  whatever  should 
the  puhlic  lands  within  the  State  he  taxed  hy  the  State  legislature." 
Therefore  Mr.  Gilpin  would  have  the  commissioners  conclude  that  the 
United  States  ought  to  pay  the  debts  of  Florida.  Does  this  follow 
from  his  premises  ?  The  provision  of  the  constitution  of  Florida,  to 
which  reference  is  here  mad«,  is  in  these  words:  "No  greater  amount 
of  tax  or  revenue  shall  be  levied  than  may  be  required  for  the  necessary 
expenses  of  government." 

It  is  a  most  unwarrantable  construction  of  this  provision  to  assert 
that  it  authorizes  the  repudiation  of  the  debts  of  the  Territory.     The 
principle  is  well  settled  that  a  territorial  government  may  contract 
debts  which  shall  bind  its  people  when  they  arc  admitted  a|»j|t  State 
into  the  Union.     This  was  decided  in  the  case  of  the  New  Orleans 
Navigation  Company,  reported  in  11th  Martin's,  page  309.     The  doc- 
trine of  the  writers  on  international  law  is  to  the  same  effect.     Chan- 
cellor Kent  thus  lays  down  the  law  in  his  clear  and  emphatic  style: 
"A  State  neither  loses  any  of  its  rights  nor  is  discharged  from  any  of 
its  duties  by  a  change  in  the  form  of  its  civil  government.     The  body 
politic  is  still  the  same,  though  it  may  have  a  different  organ  of  com- 
munication."    So  that  whether  it  was  so  designed  by  the  people  in 
framing  their  Constitution  or  not,  judicial  decision  and  international 
law  both  declare  that  they  are  unable  to  rid  themselves  of  their  just  obli- 
gations by  any  new  form  of  government.     But  it  was  never  so  intended. 
It  is  a  necessary  expense  of  a  government  to  pay  its  debts.     It  is  so 
well  understood  by  the  tax-payers  of  Great  Britain,  that  the  payment 
of  the  interest  on  a  debt  is  a  necessary  expense  of  government,  that  I 
(lid  not  expect  to  be  called  upon  to  prove  the  proposition.     The  prin- 
ciples which  regulate  the  obligations  of  Florida  towards  licr  creditors 
are  fixed  by  universal  law,  and  could  not  be  affected  by  her  admission 
as  a  State.     Congress  had  no  power  to  require  the  Territory  to  be  out 
of  debt  before  admitting  it  into  the  Union,  and  assumed  for  the  United 
States  no  obligation  by  admitting  it  without  such  requirement. 

In  regard  to  the  exemption  of  the  public  lands  from  taxation,  that 
was  specially  mentioned  in  the  law  organizing  the  territorial  govern- 
ment. It  was  no  new  thing  to  re-enjoin  it  upon  the  State  authorities. 
The  same  provision  had  been  introduced  by  Congress  into  every  terri- 
torial charter  from  the  foundation  of  the  federal  Constitution,  and 
continuedtwhen  the  Territory  became  a  State.     Why  should  Florida 


272 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


be  an  exception  to  the  rule?  It  is  well  understood  by  every  man  of 
common  intelligence  in  the  United  States  that  the  public  lands  never 
were,  in  any  State  or  Territory,  subject  to  the  control  of  either ;  and  if 
the  claimants  did  not  inquire  into  this  when  they  purchased  these 
bonds,  there  is  no  justice  in  making  the  people  of  the  United  States 
liable  for  the  results  of  their  negligence*  Suppose  a  man  who  is  in 
need  of  money  should  go  to  another  and  offer  to  mortgage  ray  house 
as  security  for  a  loan,  and,  without  investigating  the  title,  the  lender 
should  take  a  mortgage  upon  it.  When  it  is  afterwards  shown  that 
the  mortgagor  had  no  right  whatever  to  my  house,  am  I  bound  to  pay 
the  debt  when  it  becomes  due?  According  to  Mr.  Gilpin's  doctrine, 
I  am  ;Ait  according  to  universal  law  and  justice,  I  am  not.  This  is 
Mr.  Gilpin's  argument  in  favor  of  the  liability  of  the  United  States 
derived  from  the  public  lands. 

'  In  the  course  of  these  observations  I  have  shown  that  the  first 
position  assumed  by  the  learned  counsel  cannot  be  maintained,  and 
that  there  is  no  liability  of  the  United  States  upon  the  ground  of 
equity  and  public  morals.  > 

His  second  point  was,  that  from  its  origin  this  debt  was  a  debt 
of  the  United  States  as  well  as  of  the  Territory  of  Florida.  I  have 
shown  that  the  United  States  can  only  contract  debts  by  act  of  Con- 
gress passed  according  to  prescribed  forms,  and  that  none  of  these 
forms  were  complied  with  in  the  supposed  assent  of  Congress  to  the 
contraction  of  this  debt.  The  United  States  government  cannot  con- 
tract a  debt  at  all,  except  by  law  or  by  treaty,  which  is  a  supreme  law  ; 
und  in  neither  mode  did  it  assent  to  the  Florida  obligations.  I  huve 
moreover  shown,  by  incontrovertible  proof,  that  the  purchasers  of 
these  bonds  knew  the  United  States  government  was  not  bound  for 
their  i)aynient  from  the  price  they  bore  in  the  market,  it  being  far 
below  that  of  the  United  States  stock  sold  in  London  at  the  same  time. 
•  The  learned  counsel  ears,  whatever  mav  be  the  force  of  this  last 
Argument,  that  it  does  not  apply  to  his  other  ground,  which  is,  "  that 
in  any  event  the  United  States  government  confirmed  and  took  upon 
jtself  this  debt  when  Florida  was  admitted  into  the  Union  as  a  Stato." 

If  the  federal  government  took  it  upon  itself  by  the  admission  of 
Florida,  that  was  because  the  act  of  the  Territory  creating  it  thereby 
became  a  law  of  the  United  States.  The  same  constitutional  objection 
here  arises  that  we  have  alreaely  considered,  namely,  that  tile  law  au- 


CONVENTION   WITH  GREAT  BRITAIN. 


273 


thorizing  the  debt  was  never  passed  by  Congress,  nor  approved  by  the 
President.  But  suppose  the  mere  admission  of  Florida  as  a  State 
adopted  this  law  into  the  statutes  of  the  Union,  it  will  not  be  denied 
that  it  must  have  the  same  effect  upon  the  other  acts  of  the  territory, 
and  its  laws  have  thus  at  once  become  laws  of  the  United  States.  I 
understand  the  counsel  to  admit  that  this  is  a  legitimate  conclusion 
from  the  premises.  If  this  is  true  of  Florida,  it  is  equally  true  of 
every  other  Territory  which  has  been  admitted  as  a  State  since  the 
foundation  of  the  government,  and  all  their  laws  are  statutes  of  the 
United  States.  Instead,  then,  of  one  government,  in  which  all  are 
represented,  giving  laws  to  the  Union,  we  have  besides  had,  at  the 
same  time,  two  or  three  different  territorial  legislatures  in  remote  parts 
of  the  country  enacting  laws  for  the  control  of  the  whole  iCmerican 
people — a  hydra  in  government  never  before  known  to  any  nation, 
and  this  commission  will  not  venture  to  assume  that  the  people  of  the 
United  States  have  lived  under  it  for  three-quarters  of  a  century  with- 
out having  discovered  its  monstrosity. 

To  my  mind  this  is  conclusive,  that  by  the  admission  of  Florida, 
the  United  States  did  not,  in  any  form  whatever,  assume  the  obliga- 
tions of  the  territorial  debts,  and  this  commission  cannot  refuse  to 
concur  in  this  conclusion. 


18 


tri 


O 


274 


ADJUSTMENT  OF   CLAIMS  UNDER  THE 


Mr.  Cairns  for  the  bondholders,  assisted  by  Hannen,  agent  and 
counsel  for  Great  Britain,  in  reply,  contended  at  length  in  behalf  of 
the  allowance  of  the  claim. 

1 .  On  the  general  ground  of  the  subordinate  power  and  position  of 
the  Territory  under  the  general  government. 

That  the  United  States  held  the  supreme  power  over  her  Territories 
originally,  appointed  her  executive,  had  a  large  interest  in  the  lands 
of  the  Territory,  and  in  numerous  respects  held  such  a  responsibility 
and  chu^e  over  her,  and  control  over  her  legislation,  that  in  justice 
and  equity  the  general  government  should  be  responsible  for  her  debts. 

2.  That  the  article  in  her  constitution,  limiting  the  right  of  taxation 
to  the  necessary  expenses  of  government,  might  be  construed,  and 
probably  was  designed  to  be  construed,  in  a  manner  to  prevent  the 
State  government  from  making  the  necessary  appropriations  for  the 
payment  of  the  debts  of  the  Territory,  and  that  Congress,  by  the  ad- 
mission of  the  Territory  with  such  a  provision,  became  accessory  to 
the  wrong,  and  should  be  holden  as  pledging  her  own  resources  for 
the  payment  of  the  claims. 

3.  It  was  further  contended  that,  under  all  the  circumstances  of  the 
case,  the  United  States  was  morally  bound  to  pay  these  debts.  That 
a  moral  obligation  is  as  high  a  claim  as  can  be  set  up  against  a  sove- 
reign power,  and  is  as  fully  obligatory  against  such  a  power  as  a  legal 
obligation.  That  a  moral  obligation  is  the  only  claim  that  can  exist 
against  a  sovereign  State. 


ers. 


COKYEl^TIOM  WITH  ORBAT  BBITAIN. 


276 


■    ;       ),■  ', 


.  i;i»lM'.i> 


OBSERVATIONS  OF  MR.  THOMAS,  AGENT  FOR  THE  UNITED  STATES,  ON 
.     THE  REHEARING  BEFORE  THE  UMPIRE. 


The  commissionera  having  disagreed  in  opinion  as  to  the  obligation  oi  Ihe  United  States  to 
pay  the  debts  of  the  Territory  of  Florida,  the  case  was  submitted  to  Mr.  Bates,  the  umpire, 
for  decision.  At  the  request  of  the  British  commissioner  and  agent,  the  umpire  had  attended 
the  argument  of  the  case  before  the  commissioners,  and  it  was  understood  by  the  agent  of  the 
United  States  that  the  umpire's  presence  would  render  a  re-argument  unnecessary ;  but  Mr. 
Cairns,  one  of  the  counsel  for  her  Majesty's  government  in  this  case,  insisted  upon  his  right 
to  a  special  hearing  by  the  umpire,  and  the  case  was  accordingly  re-argued  before  him  and 
the  commissioners.  After  her  Majesty's  counsel  had  closed  his  argument,  Mr.  Thomas,  the 
agent  for  the  United  States,  made  the  following  observations  in  reply : 


Mr.  Thomas:  ' 

When  the  argument  of  this  case  took  place  before  the  commission- 
ers, I  thought  it  was  understood  that  the  presence  of  the  umpire,  al- 
though unofficial,  would  render  a  re-argument  unnecessary.  In  this, 
it  appears,  I  was  mistaken.  I  do  not  find,  however,  that,  in  the 
review  of  the  subject,  the  learned  counsel  has  flisoovered  any  new 
ground  on  which  to  rest  the  claim  against  the  Tjiilted  States.  It  is 
still  alleged  that  the  United  States  government  confirmed  and  took 
upon  itself  the  obligation  of  these  debts  by  the  admission  of  Florida 
into  the  Union. 

I  have,  in  a  previous  discussion  of  this  question,  shown  that  no  such 
legal  consequence  followed  from  the  actioft  of  the  general  government. 
And,  if  it  be  not  sufficiently  manifest  that  the  takers  of  these  bonds 
expected  the  admission  of  Florida  would  occur  precisely  as  it  did, 
I  shall  be  able  to  remove  any  doubt  on  that  point  by  information 
which  has  recently  come  to  my  knowledge,  and  which  I  shall  now 
present  for  the  consideration  of  the  umpire, 


V^ff^^ 


276 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


'!"»■ 


The  prospectus,  issued  by  authority  of  Florida,  containing  a  full 
statement  of  the  security  offered,  was  made  known  to  the  purchasers 
of  the  bonds  before  they  invested  their  money ;  and  in  that  prospectus 
no  allusion  whatever  is  made  to  the  liability  of  the  United  States.  It 
is  entitled,  "  Florida  six  per  cent,  sterling  bonds,"  and  the  very  first 
sentence  commences  by  declaring,  '<  these  are  the  bonds  of  the  Terri- 
tory of  Florida;"  then  it  sets  forth,  with  great  minuteness,  the  ad- 
vantages of  the  investment,  and  the  safety  of  the  security  ofiered,  and 
sums  them  up  in  the  following  specific  manner : 

"  The  holders  of  the  bonds  have  therefore  a  fourfold  security  for 
their  payment : 

''1.  The  capital  of  the  bank,  equal  in  amount  to  the  bonds. 

"  2.  The  sinking  fund,  which  will  efiect  its  object  in  fourteen  years. 

''  3.  The  property  of  the  stockholders,  originally  appraised  at  three 
millions,  with  its  increased  value. 

"  4.  The  faith  and  credit  of  the  Territory  and  State  of  Florida." 

These  are  the  terms  of  the  contract  proposed  to  and  accepted  by  the 
purchasers  of  the  Florida  bonds.  What  is  there  here  to  warrant  the 
inference  that  the  government  of  the  United  States  could  directly  or 
remotely  be  held  liable  for  their  payment  ?  It  is  amazing  that,  with 
this  contract  so  explicit,  and  in  the  hands  of  the  claimants,  they 
should  set  up  this  claim ;  and  it  is  not  less  so  that  the  learned  coun- 
sel, who  have  appeared  for  her  Majesty  in  this  case,  should  advo- 
cate it  before  an  intelligent  tribunal. 

The  faith  of  the  Territory  is  pledged,  which  is,  of  course,  the  faith 
of  the  people  of  that  Territory ;  and  they  then  pledge  the  faith  of  the 
same  people  when  admitted  as  a  State  of  the  Union ;  and  the  near 
approach  of  that  event  is  held  out  as  one  of  the  advantages  of  the  in- 
vestment. The  prospectus  proceeds  to  state  that,  "by  direction  of  an 
act  of  Congress,  a  convention  is  now  in  session  for  the  purpose  of 
framing  a  constitution  for  Florida,  and  she  will  probably  become  a 
State  this  year."  So  that  the  purchasers  of  the  bonds,  in  eflfect,  ac- 
cepted as  security  for  the  debt  the  faith  of  the  State,  as  well  as  that  of 
the  Territory.  The  purchasers  of  the  bonds,  therefore,  perfectly  un- 
derstood the  nature  and  amount  of  the  security  which  they  received 
for  their  money ;  and  they  moreover  knew  that  the  liability  of  the 
United  States  was  not  embraced  in  it ;  and,  unless  it  is  the  purpose  of 
this  commission  to  disregard  contracts  fairly  made,  and  to  declare  the 


I 

t 

r 

M 
C< 
ll 

r( 


# 


OONVBNTION  WITH  OBEAT  BBITAIK. 


277 


property  of  one  person  to  belong  to  another,  the  umpire  will  be  bound 
to  decide  that  no  sort  of  obligation  devolves  on  the  national  govern- 
ment to  pay  these  debts. 

If  there  were  nothing  else  to  be  said  on  the  flubjcct,  the  prospectus 
would  be  conclusive  against  the  claim  ;  but  besides  this,  I  desire  to 
call  the  attenfion  of  the  umpire  to  the  argument  which  I  had  the 
honor  to  deliver  before  the  commissioners  and  umpire,  and  which  will 
render  further  observations  unnecessary. 


;r 


278 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


Upham,  United  States  Commiesioner : 

I  have  listened  attentively  to  the  arguments  urged  in  this  case,  but 
haro  been  unable  to  see  any  just  grounds  on  which  the  claim  is 
based. 

To  sustain  the  claim,  one  of  two  propositiouH  must  bo  maintained — 
either  that  the  act  of  the  Territory  of  Florida  pledging  her  credit, 
originally  bound  the  United  States ;  or,  that  Congress  subsequently 
approved  and  sanctioned  the  law  of  the  Territory,  so  as  to  make  it 
obligatory  on  the  whole  people  of  the  Union. 

I.  Could  the  Territory  of  Florida  bind  the  United  States  originally 
by  her  acts? 

This  depends  entirely  on  the  power  vested  in  her  as  a  government. 
Florida  had  been  originally  colonized  by  Spain,  and  had  long  been 
subject  to  her  authority.  It  was  ceded  by  that  power  to  the  United 
States,  on  the  22d  of  February,  1819,  with  a  provision  that  it  "  should 
be  incorporated  into  the  Union  as  soon  as  should  be  consistent  with 
the  principles  of  the  federal  Constitution." 

The  power  of  holding  Territories  is  evidently  given  to  the  general 
government.  The  Constitution  of  the  United  States  provides  that 
Congress  shall  have  power  ''to  make  all  needful  rules  and  regulations 
respecting  its  Territories. ' ' 

The  course  of  proceeding  by  Congress  in  such  cases  has  been  to 
constitute,  within  any  given  Territory,  whenever  the  number  of 
inhabitants  will  justify  it,  a  territorial  government,  with  power  to 
establish  its  own  laws,  subject  only  to  such  reservations  and  restric- 
tions as  are  specifically  named  in  the  charter  bestowed  upon  it. 

The  governor  of  Territories  has  been  uniformly  appointed  by  the 
President  of  the  United  States ;  and,  in  some  instances,  for  a  short 
time,  a  territorial  council  has  been  appointed  in  the  same  manner, 
having  the  usual  powers  and  authority  of  a  legislature. 

A  council  was  appointed  in  this  manner  in  Florida,  until  1826, 
when  it  was  provided  that  the  inhabitants  should  elect  their  territorial 
conncil  or,  in  other  words,  their  legislature,  annually. 

By  the  act  constituting  the  Territory  of  Florida,  the  governor  was 
invested  with  the  powers  of  a  chief  executive  magistrate ;  and  the 
council,  or  legislature,  was  authorized,  in  express  terms,  "to  legislate 
on  all  rightful  subjects  of  legislation,"  provided  that  its  laws  were 


CONVBNTION   WITH   QREAT  BRITAIN. 


279 


to  be  reported  to  Congreg«  annually,  and  "if  they  wore  disapproved 
by  Congress,  they  were  thenceforth  to  be  of  no  force." 

Under  the  authority  thus  conferred,  courtB  were  establiHhed  having 
the  highest  civil  and  criminal  jurisdiction ;  and  her  own  laws,  within 
her  own  jurisdiction,  subject  only  to  the  Constitution  of  the  United 
Htates  and  the  negative  of  Congress,  constituted  the  supremo  laws  of 
the  Territory. 

Florida  exercised  under  this  charter  all  the  ordinary  powers  of  a 
government.  She  regulated  her  own  policy,  assessed  her  own  taxes, 
granted  numerous  acts  of  incorporut'on,  and  established  various  insti- 
tutions deemed  essential  to  her  welfare  and  prosperity,  until  1835, 
whc|||6he  passed  the  acts  under  which  the  indebtedness  of  the  Terri- 
tory was  incurred. 

Can  the  United  States  be  said  to  have  enacted  either  of  these  laws, 
or  to  be  holden,  as  a  government,  responsible  for  the  payment  of  the 
obligations  created  by  them?  No  evidence  has  been  shown  to  sustain 
such  a  proposition,  and  no  theory  of  government  countenances  it. 
Various  suggestions  have  been  thrown  out  as  bearing  on  this  point, 
to  which  we  propose  to  advert. 

One  suggestion  which  has  been  made  is :  That  the  Governor  of  Flo- 
rida was  appointed  by  the  President  of  the  United  States. 

In  like  manner  the  governors  of  every  province  of  Great  Britain  aro 
appointed  by  the  crown ;  but  it  was  never  understood  that  such  pro- 
vinces had  not  full  power  of  enacting  valid,  binding  laws,  within  their 
constituted  sphere  of  action,  to  the  same  extent  as  other  governments. 

It  is  wholly  immaterial^  in  this  respect,  how  the  chief  executive  mag- 
istrate of  a  province,  or  the  other  branches  of  its  government,  are  ap- 
pointed. When  constituted,  they  form  the  government  of  the  province, 
with  the  ordinary  rights,  duties,  and  powers  of  a  government.  One 
of  the  very  least  of  ^hese  powers  is  the  capacity  to  contract  debts  in 
aid  of  the  functions  for  which  it  was  constituted.  Each  government 
possesses  this  power  as  one  of  its  attributes,  in  common  with  every 
other  public  or  private  corporation,  except  so  far  as  it  may  be  expressly 
restricted  in  its  exercise  by  some  organic  or  other  law,  and  no  such  law 
is  here  intimated  or  pretended. 

Anotner  suggestion  made  is  :  That  the  laws  of  Florida  might  he  dis' 
a'pproved  by  the  general  government. 

But  this  does  not  make  the  laws  of  the  Territory  the  laws  of  the 


280 


ADJUSTMENT  OF  CLAIMS  UNDER   THE 


Union,  or  bind  the  Union  to  the  obligations  they  impose.  Such  laws, 
when  approve(l_,  only  operate  on  the  people  of  Florida.  They  have  no 
power  beyond  her  limits.  If  disapproved,  they  are  a  mere  nullity. 
The  power  of  approval  of  colonial  laws  before  they  take  effect  has  al- 
ways existed  in  the  crown  of  Great  Brit.iiu  from  her  earliest  territo- 
rial acquisitions,  and  in  every  other  government  having  colonies  or 
subordinate  possessions.  The  laws  made  by  the  colonies  are,  notwith- 
standing, their  own  laws,  and  havo  never  been  liolden  to  bind  the 
mother  country. 

The  capability  of  incurring  debts  tor  certain  objects  ordinarily  ex- 
ists in  parishes,  towns,  cities,  counties,  &c.;  and  though  they  may  be 
under  the  control  of  the  general  government,  their  contracts,  aiid  the 
debts  incurred  by  them,  are  nevertheless  their  own.  A  different  doc- 
trine would  confound  all  principles  of  just  and  accurate  responsibility, 
and  would  seriously  impair  the  advantages  devised,  througti  a  variety 
of  subordinate  organizations,  to  secure  the  essential  ends  of  good  gov- 
ernment.   ' 

Again  it  is  said :  That  the  lands  belonging  to  the  United  States  within 
the  territory  of  Florida  were  not  liable  to  be  taxed. 

This  is  so.  The  public  lands,  however,  of  the  United  States  are 
graduated  at  a  price  best  calculated  to  insure  their  rapid  settlement, 
and  they  become  at  once  liable  to  taxation  on  their  being  sold  and  im- 
proved. The  same  policy  exists  in  other  governments.  Public  lands 
and  public  property  are  nowhere  taxed  ;  but  such  an  exemption  was 
never  construed  to  render  the  general  government  liable  for  the  debts 
of  any  town,  county,  or  province  within  which  such  lands  or  property 
might  be  situated. 

It  has  been  also  said,  and  numerous  authorities  have  been  cited  to 
the  point :  That  the  original  power  of  the  general  government  over  the 
pvhlic  territory  was  absolute  and  unlimited.  So  the  people  of  the  United 
States  had  originally  unlimited  po^jer  to  adopt  the  form  of  govern- 
ment they  preferred  ;  and  they  may  still  change  and  modify  their  Con- 
stitution at  pleasure,  but  this  does  not  alter  the  facts  as  to  the  binding 
character  of  the  acts  of  the  government  when  once  established. 

The  United  States  has  chosen  to  extend  to  her  Territories,  in  the 
outset,  the  right  of  self-government,  and  has  intrusted  them,  as  in 
the  case  of  Florida,  with  powers  "to  act  in  all  rightful  subjects  of 


CONVENIION   WITH   GREAT  BRITAIN. 


281 


legislation."  This  power  once  granted  is  complete.  From  thirteen 
original  States,  the  Union  has  thus  extended  to  thirty-one  States, 
formed  mostly  from  new  Territories,  each  of  which  is  wholly  indepen- 
dent of  the  other,  as  to  the  contracts  and  liabilities  they  may  make, 
and  the  legislation  they  may  adopt,  saving  only  their  obligation  to 
the  general  Constitution  of  the  Union.  The  government  of  a  Terri- 
tory does  not  depend  so  fully  and  perfectly  on  the  action  of  its  own 
people  as  that  of  the  individual  States,  but  its  laws,  once  enacted  and 
not  disapproved,  have  precisely  the  same  binding  power  and  efficacy, 
within  its  limits,  as  those  of  a  State.  No  one  of  these  suggestions  to 
which  we  have  adverted,  or  the  whole  combined,  tend  to  show  that  the 
acts^  Florida  are  the  acts  of  the  general  government,  or  that  her 
responsibilities  are  the  responsibilities  of  the  American  people. 

II.  It  remains  to  consider  the  second  point  raised,  whether  Congress 
subsequently  approved  and  sanctioned  the  local  law  of  Florida,  so  as 
to  make  it  a  provision  binding  generally  on  the  people  of  the  Union. 
It  is  not  contended  that  this  local  law  was  adopted,  or  liability  in- 
curred by  any  direct  act  of  the  general  government  assuming  the  debt. 
It  is  said,  however,  that  the  government  has  rendered  itself  liable  for 
its  payment,  because  she  admitted  Florida  into  the  Union  as  a  State 
without  first  compelling  her  to  make  payment  of  these  debts. 

The  argument  proceeds  on  the  ground,  that  the  United  States  can- 
not admit  a  portion  of  its  Territory  into  the  Union  while  in  debt, 
without  becoming  responsible  for  such  indebtedness.  It  asserts,  in 
substance,  the  principle  that  whenever  the  government  has  it  in  its 
power,  by  the  conditional  denial  of  any  privilege,  to  compel  a  Terri- 
tory to  make  payment  of  a  debt,  it  must  insist  on  such  compulsion,  or 
it  shall  be  holden  to  have  assumed  such  debt. 

This  is  a  new  responsibility  imposed  on  governments. 

It  is  quite  clear  to  me,  on  the  other  hand^  that  the  United  States 
might  well  assume  the  positioo  that  she  had  nothing  to  do  with  the 
contracts,  between  her  Territories  and  individuals,  and  that  it  is  not 
a  part  of  her  duty  to  constitute  herself  into  a  judicial  tribunal  to  pass 
upon  the  pecuniary  relations  existing  between  them.  Florida  might 
well  contend  that  this  should  not  be  done,  and  that  she  will  not  be 
dictated  to,  or  interfered  with,  by  the  United  States  on  the  subject. 

But  this  point  is  put  still  stronger.  It  is  said  that  a  provision  was 
inserted  into  the  constitution  of  Florida^  preparatory  to  her  admission 


*     Jm 


282 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


as  a  State,  ''that  no  other  or  greater  amount  of  tax  or  revehue  shall 
at  any  time  be  levied,  than  may  be  required  for  the  necessary  expenses 
of  government,"  and  it  is  contended  that  this  provision  expressly  pro- 
hibits the  payment  of  any  prior  existing  debt ;  and,  that  the  United 
States,  by  admitting  Florida  into  the  Union,  with  such  a  clause  in 
her  constitution,  became  accessory  to  the  wrong  done,  and  should  be 
holden  responsible  for  it.  But  this  is  a  far-fetched  construction  of  the 
clause  in  question,  and  forms  altogether  too  remote  a  claim  to  impose 
a  legal  pecuniary  liability.  The  most  necessary  expenses  of  a  govern- 
ment are  the  payment  of  its  obligations  as  they  fall  due.  It  can 
hardly  be  pretended,  if  u  tax  should  be  assessed  by  the  State  of 
Florida  upon  its  citizens  to  raise  funds  to  meet  such  uoligatioH,  that 
an  individual  could  resist  payment  of  such  tax  on  the  ground  that  it 
was  unconstitutional.  No  court  would  give  such  a  construction  to  this 
provision  of  the  Constitution,  and  unless  we  hold  that  such  would 
necessarily  be  the  decision  of  the  court,  then  the  objection  is  without 
foundation^  and  constitutes  no  ground  for  the  assertion  that  the  United 
States,  by  admitting  Florida  into  the  Union  with  this  provision, 
should  be  held  to  have  assumed  the  debts  of  the  Territory. 

But  whether  such  be  the  interpretation  of  the  clause  in  the  Consti- 
tution or  not,  the  inference  attempted  to  be  drawn  from  it  would  not 
follow.  If  Florida  has  repudiated  her  debts  for  any  cause,  it  was  her 
act,  and  it  was  not  incumbent  on  the  United  States  to  compel  her,  by 
any  denial  of  the  ordinary  right  of  admission  into  the  Union,  to  pay 
such  debts.  She  had  no  more  rightful  control  over  the  acts  of  a  Ter- 
ritory so  situated,  than  she  had  over  a  State. 

The  creditors  of  the  Territory  had  no  power,  either  legal  or  moral, 
to  interpose  any  such  bar  to  her  admission.  It  is  not  a  remedy  for 
coercing  the  payment  of  debts  which  was  contemplated  by  any  party 
to  the  contract  when  entered  into. 

The  United  States,  therefore,  violated  no  principle  of  law,  or  equity, 
or  moral  obligation  in  admitting  Florida  into  the  Union,  and  is  guilty 
of  no  laches  for  which  she  should  be  holden  responsible  in  not  disap- 
proving the  acts  passed  by  her  as  a  Territory. 

The  several  States  and  Territories  are  independent  sovereignties  for 
the  ordinary  purposes  of  local  government.  They  have  the  power 
over  the  liberty  and  lives  of  their  citizens,  and  the  formation  of  their 
own  civil  and  social  relations  within  their  precinct. 


CONVENTION   WITH   GREAT   BRITAIN. 


283 


They  can  incur  obligations  for  all  expenditures  coming  within  their 
appropriate  sphere  as  fully  as  the  general  government.  Their  delin- 
quencies in  any  matter,  coming  within  the  range  of  their  powers,  are 
their  own  ;  and,  however  grievous  a  wrong  they  may  inflict  by  such 
delinquencies  on  their  creditors,  the  precedent  of  holding  the  general 
government  responsible  for  such  wrong,  would  be  still  more  disas- 
trous. It  would  impose  burdens  on  individuals  having  no  immediate 
share  or  interest  in  the  benefit  received ;  would  constitute  taxation 
without  representation,  and  would  confound  the  necessary  and  right- 
ful distinctions  in  the  partition  of  responsibility  and  accountability 
essential  for  the  maintenance  of  government. 

T^e  wrong  complained  of  is  not  one  which  can  be  charged  against 
the  United  States ;  she  is  not  amenable  for  it,  and  a  proper  apprecia- 
tion of  the  distinct  agencies  of  different  organizations  in  government 
will  fully  exonerate  the  United  States  from  the  claim  set  up  in  this 
case.  In  my  view,  therefore,  the  claimants  have  shown  no  ground 
entitling  them  to  recovery  against  the  general  government.  . 


I 


i 
I  i 


^84 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


Hornby,  British  Commissioner : 

This  is  a  claim  advanced  by  certain  holders  of  bonds  issued  by  the 
government  of  the  Territory  of  Florida,  in  the  year  1833,  payment  of 
which  is  now  claimed  against  the  United  States  government,  under 
the  convention  of  the  8th  of  February,  1853. 

It  appears  that  Florida  was  ceded,  under  a  treaty,  by  Spain  to  the 
United  States,  in  the  year  1819,  and  the  United  States  assumed  the 
sovereignty  as  the  crown  of  Spain  had  held  it,  and  also  became  pos- 
sessed of  such  part  of  the  land  as  had  belonged  to  the  crown,  not 
merely  in  sovereignty,  but  as  the  possessors  in  absolute  ownership. 
By  the  sixth  article  of  the  treaty,  it  was  arranged  that  the  inhabitants 
of  the  Territory  should  be  incorporated  in  the  Union  as  soon  as  was 
consistentwibh  the  principles  of  the  federal  Constitution  and  admitted 
to  all  the  privileges  and  rights  of  citizens  of  the  United  States.  Pre- 
vious, however,  to  its  admission  as  a  State  of  the  Union,  the  territorial 
government  appointed  by  Congress  incurred  certain  liabilities  ;  and 
the  question  we  have  now  to  consider  is  the  position  of  the  federal 
government,  under  the  circumstances  to  which  I  shall  presently  allude, 
with  regard  to  these  debti. 

To  do  this  effectually,  it  will  be  necessary,  in  the  first  place  to  ex- 
amine the  nature  of  the  government  of  the  Territory  of  Florida,  and 
its  relation  to  the  federal  government  of  the  United  States. 

The  vast  tracts  of  country  belonging  to  the  United  States  not  com- 
prised within  the  limits  of  the  several  States  of  the  Union,  are  subject 
to  the  absolute  government  of  Congress.  An  exclusive  and  unlimited 
power  of  legislation  for  these  Territories  is  conferred  upon  Congress 
by  the  Constitution,  and  has  been  sanctioned  by  repeated  decisions  of 
the  United  States  courts.  So  complete  is  dominion  of  Congress  over 
the  Territories,  that  it  has  even  excited  anxiety  in  the  minds  of  eminent 
Americans,  as  being  inconsistent  in  spirit  with  the  republican  insti- 
tutions of  the  country.  Chancellor  Kent  has  the  following  observa- 
tions on  this  subject. 

"It  would  seem  from  these  various  congressional  regulations  of  the 
Territories  belonging  to  the  United  States  that  Congress  have  supreme 
power  in  the  government  of  them,  depending  on  the  exercise  of  their 
sound  discretion.  That  discretion  has  hitherto  been  exercised  in  wis- 
dom  and  good  faith,  and  with  an  anxious  regard  for  the  security  of 


CONVENTION  WITH   GREAT   BRITAIN. 


286 


the  rights  and  privileges  of  the  inhahitants,  as  defined  and  declared  in 
the  ordinance  of  July,  1*78*7,  and  in  the  Constitution  of  the  United 
States.  'All  admit,'  said  Chief  Justice  Marshall,  *  the  constitution- 
ality of  a  territorial  government.'  But  neither  the  District  of  Col- 
umbia nor  a  Territory  is  a  State  with  "a  the  meaning  of  the  Constitu- 
tion, nor  entitled  to  claim  the  privileges  secured  to  the  members  of 
the  Union.  This  has  been  so  adjudged  by  the  Supreme  Court.  Nov 
will  a  writ  of  error  or  appeal  lie  from  a  territorial  court  to  the  Supreme 
Court,  unless  there  be  a  special  statute  provision  for  the  purpose.  If, 
therefore,  the  government  of  the  United  States  should  carry  into 
execution  the  project  of  colonizing  the  great  valley  of  the  Columbia,  or 
Oregon  river,  to  the  west  of  the  Rocky  mountains,  it  would  afford  a 
subject  of  grave  consideration  what  would  be  the  future  civil  and 
political  destiny  of  that  country.  It  would  be  a  long  time  before  it 
would  be  populous  enough  to  be  created  into  one  or  more  independent 
States ;  and  in  the  mean  time,  upon  the  doctrine  taught  by  the  acts  of 
Congress,  and  even  by  the  judicial  decisions  of  the  Supreme  Court,  the 
colonists  would  be  in  a  state  of  the  most  complete  subordination,  and 
as  dependent  upon  the  will  of  Congress  as  the  people  of  this  country 
would  have  been  upon  the  king  and  Parliament  of  Great  Britain  if 
they  could  have  sustained  their  claim  to  bind  in  all  cases  what- 
soever. Such  a  state  of  absolute  sovereignty  on  the  one  hand,  and  of 
absolute  dependence  on  the  other,  is  not  congenial  with  the  free  and 
independent  spirit  of  our  native  institutions  ;  and  the  establishment 
of  distant  territorial  governments,  ruled  according  to  will  and  plea- 
sure, would  have  a  very  natural  tendency,  as  all  proconsular  govern- 
ment have  had,  to  abuse  and  oppression." 

Mr.  Justice  Story,  in  his  "Commentaries  on  the  Constitution,"  sec. 
1328,  says  : 

"  The  power  of  Congress  over  the  public  territory  is  clearly  exclu- 
sive and  universal,  and  their  legislation  is  subject  to  no  control,  but 
is  absolute  and  unlimited,  unless  so  far  as  it  is  affected  by  stipulations 
in  the  cessions,  or  by  the  ordinance  of  178*7,  under  which  any  part  of 
it  has  been  settled." 

Not  only,  however,  does  the  right  oi  government  belong  to  Congress, 
but  the  United  States  also  own  the  soil  of  the  immense  tracts  of  unsettled 
lands  throughout  the  Territories,  and  the  funds  derived  from  the  sale 
of  these  lands  are  at  the  absolute  disposal  of  the  national  government, 


286 


ADJUSTMENT  OF   CLAIMS  UNDER  THE 


and  are  applied  to  national  purposes.     ''The  Constitution,"  says 
Chancellor  Kent,*  "  gave  to  Congress  the  power  to  dispose  of  and 
make  all  needful  rules  and  regulations  respecting  the  territory  or  other 
property  belonging  to  the  United  States,  and  to  admit  new  States  into 
the  Union.   Since  the  Constitution  was  formed,  the  value  and  efficiency 
of  this  power  have  been  magnified  to  an  incalculable  extent  by 
the  purchase  of  Louisiana  and  Florida ;  and,  under  the  doctrine  con- 
tained in  the  cases  I  have  referred  to.  Congress  have  a  large  and 
magnificent  portion  of  territory  under  their  absolute  control  and  dis- 
posal.   This  immense  property  has  become  national  and  productive 
stock,  and  Congress,  in  the  administration  of  this  slock,  have  erected 
temporary  governments  under  the  provisions  of  the  ordinance  of  Con- 
gress, under  the  confederation,  and  under  the  constitutional  power." 
"  On  the  other  hand,"  says  Mr.  Justice  Story,t  "  the  public  lands 
hold  out,  after  the  discharge  of  the  national  debt,  ample  revenues,  to 
be  devoted  to  the  cause  of  education  and  sound  learning,  and  to  internal 
improvements,  without  trenching  upon  the  property  or  embarrassing 
the  pursuits  of  the  people  by  burdensome  taxation.     The  constitutional 
objection  to  the  appropriation  of  the  other  revenues  of  the  government 
to  such  objects  has  not  been  supposed  to  apply  to  an  appropriation  of 
the  proceeds  of  the  public  lands.     The  cessions  of  territory  were 
expressly  made  for  the  common  benefit  of  the  United  States,  and 
therefore  constitute  a  fund  which  may  be  properly  devoted  to  any 
objects  with  and  for  the  common  benefit  of  the  Union." 

In  a  word,  the  Territories  are  declared,  by  the  third  section  of  the 
fourth  article  of  the  Constitution,  to  be  the  "  property"  of  the  United 
States,  and  as  such  are  placed  under  the  absolute  disposal  of  Congress.  | 

Congress  might,  if  it  so  pleased,  govern  the  various  Territories 
directly  and  without  the  intervention  of  any  local  machinery  ;  and  it 
does  in  fact  so  govern  the  District  of  Columbia,  which  is  in  the  same 
situation  as  the  Territories.  In  so  governing  Columbia,  it  has  been 
held  by  judicial  decision  that  Congress  does  not  act  merely  as  the  gov- 
ernment of  that  District,  but  as  the  government  of  the  whole  Union ; 
and  the  same  rule  is  applicable  to  the  government  of  the  Territories. § 

It  is,  however,  impossible  for  Congress  to  govern  all  its  many  and 


•1  Kent,  376. 
I  Const,  art.  iv 


%  div.  2. 


t  Story  on  the  Constitution,  sec.  1327. 

§  State  r.  New  Orleans  Nav.  Co.,  11  Martin  313. 


*  Atto 
t  Seei 
{  7  La 


CONVENTION  WITH   GREAT  BRITAIN. 


287 


distant  Territories  directly  in  the  same  way  that  it  governs  Columbia. 
It  is,  therefore,  compelled  to  delegate  its  authority  to  officers  appointed 
for  the  purpose ;  it  reserves  to  itself,  however,  the  full  power,  not  only 
of  repealing,  modifying,  or  altering  the  acts  of  the  local  and  tempo- 
rary government  which  it  may  have  erected,  but  it  may  "  at  any  time 
abrogate  and  remodel  the  legislature  itself,  and  all  the  other  depart- 
ments of  the  territorial  government."* 

I  have  thought  it  necessary  to  go  thus  fully  into  the  nature  of  the 
relations  of  the  Territories  to  the  federal  government,  and  to  quote 
in  extemo  the  language  used  by  the  most  eminent  American  authori- 
ties on  constitutional  law  with  reference  to  this  subject,  because  the 
learned  United  States  agent  has  relied  chiefly,  in  his  argument,  on 
the  assertion  (for  which,  however,  he  has  given  no  authority)  that  the 
territorial  government  was  "as  sovereign  within  its  sphere  as  the 
United  States  or  any  other  State."  It  is  evident,  however,  from  the 
passages  I  have  cited,  supported  by  numerous  judicial  decisions,  that 
the  territorial  government  has  no  attribute  of  sovereignty,  but  is  at 
all  times,  even  when  acting  within  the  sphere  of  the  powers  conceded 
to  it,  subject  to  the  authority  and  control  of  Congress. f 

In  the  exercise  of  the  unlimited  powers  belonging  to  it.  Congress 
established  in  1822  a  territorial  government  in  Florida,|  consisting  of 
a  governor,  assisted  by  a  legislative  council,  appointed  by  the  Presi- 
dent of  the  United  States.  The  powers  of  the  governor  and  council 
extended  to  all  rightful  subjects  of  legislation  ;  but  the  condition  was 
imposed  that  all  laws  should  be  submitted  annually  to  Congress  for 
its  approval,  and  that,  if  disapproved,  they  should  thenceforth  be  of 
no  tbrce. 

In  1826  an  alteration§  was  made  in  tlie  mode  of  appointing  the 
legislative  council,  which  was  made  elective,  but  in  other  respects  the 
territorial  government  remained  the  same. 

From  an  early  period  in  its  existence  the  territorial  government 
created  a  great  number  of  corporations  for  various  public  purposes. 
The  laws  establishing  these  corporations  were  duly  submitted  to  Con- 
gress ;  some  of  them  were  disallowed,  while  others  were  permitted  to 
pass,  after  having  been  the  subject  of  discussion  in  that  body. 

Amongst  those  acts  of  incorporation,  which  were  the  special  subject 


*  Attorney  Oeneral  Butler,  Opinions  of  United  States  Attorneys  General,  p.  1006. 

t  See  the  judgment  of  Mr.  Senator  Sharman,  Williams  v.  Bank  of  Michigan,  7  Ward  554. 

I  7  Laws  U.  S.  16.  §  7  Laws  U.  S.  470. 


-dfe 


288 


ADJUSTMENT  OF  GLAIHS  UNDER  THE 


of  consideration  in  Congress,  was  the  one  establishing  the  "Union 
Bank  of  Florida,"  (1833.)  This  act,  however,  though  declared  hj  a 
committee  of  the  Senate  to  contain  some  objectionable  provisions,  was 
permitted  to  pass  without  amendment. 

It  is  not  necessary  to  trace  the  action  of  Congress  on  this  and  the 
various  other  charters  granted  by  the  territorial  legislature,  because 
it  is  not,  and  could  not  be,  denied  that  Congress  has,  in  the  most  com- 
plete manner,  authorized  and  ratified  the  various  acts  of  the  territo- 
rial legislature  relating  to  the  corporations  whose  bonds  are  now  before 
us,  and  the  discussion  has  entirely  turned  upon  the  extent  to  which 
Congress  is  affected  by  having  given  such  authority  and  ratification. 

Let  us  now  see  what  was  done  nnder  the  "  Union  Bank"  charter. 
The  object  of  this  and  the  various  other  acts  of  incorporation  appears 
to  have  been  to  obtain  the  introduction  of  capital  into  the  Territory 
for  the  general  public  benefit.  In  the  case  qi  the  Pensacola  Bank 
bonds,  the  object  was  to  construct  a  railroad  which,  it  >ias  thought, 
would  be  advantageous  to  the  Territory.  For  similar  public  purposes 
the  "  Union  Bank"  was  empowered  to  raise  a  certain  capital  by  meam 
of  a  loan  on  the  faith  of  the  Territory.  The  mode  of  carrying  this  out 
is  thus  prescribed  by  the  act  of  incorporation : 

''  To  facilitate  the  negotiation  by  said  bank  for  the  said  loan  of  one 
millioa  of  dollars,*  the  faith  of  the  Territory  is  hereby  pledged  for  the 
security  of  the  capital  and  interest,  and  that  one  thousand  bonds  of 
$1,000  each — viz:  250  bonds  payable  in  twenty-six  years ;  250  bonds 
payable  in  twenty-eight  years,  and  250  bonds  payable  in  thirty  years, 
«nd  bearing  interest  at  a  rate  not  exceeding  six  per  cent,  per  annum — 
shall  bo  furnished  to  the  order  of  the  'Union  Bank  of  Florida,'  signed 
by  the  governor  and  countersigned  by  the  treasurer,  and  under  the  seal 
of  the  Territory.  Such  bonds  to  be  in  the  following  words :  '  One  thou- 
sand dollars.  Know  all  men  by  these  presents,  that  the  Territory  of 
Florida  acknowledges  to  be  indebted  to  the  Union  Bank  of  Florida  in 
the  sum  of  $1,000,  which  sum  the  said  Territory  promises  to  pay  in 
lawful  money  to  the  United  States,  to  the  order  of  the  president,  direc- 
tors, and  company  of  said  bank,  on  the day  of ,  18 — ,  with 

interest  at  the  rate  of per  annum,  payable  half-yearly,  at  the 

place  named  in  the  endorsement  hereon,  viz  :  on  the day  of , 

and  on  the day  of of  every  year  until  the  repayment  of  the 

•  Gilpin,  14. 


GONVBMTION  WITH   GREAT   BRITAIN. 


289 


said  principal  sum.  In  testimony  whereof,  the  governor  of  the  Ter- 
•^'.tory  of  Florida  hath  signed,  and  the  treasurer  has  countersigned, 
Lnese  presents,  and  caused  the  seal  of  the  Territory  to  he  affixed  thereto, 
at  Tallahassee,  this day  of ,  in  the  year .  ,  gover- 
nor;  ,  treasurer.  (Seal.)  The  said  honds  may  he  transfer- 
able by  the  endorsement  of  the  president  and  of  the  cashier  of  the  said 
bank^  to  the  order  of  any  person  whomsoever  or  to  the  bearer,  and 
the  said  endorsement  shall  fix  the  place  where  the  said  principal  and 
interest  shall  be  paid.'  " 

Several  series  of  bonds,  in  the  form  prescribed  by  the  charter,  wer» 
issued  in  America  and  elsewhere. 

The  greater  numl^r  were  negotiated  in  London,  and  the  present 
claimants,  amongst^hers,  advanced  their  money  on  the  security  of 
the  bonds  which  are  now  the  subject  of  consideration. 

Up  to  the  1st  July,  1841,  the  interest  on  the  bonds  was  duly  paid 
at  the  times  and  places  appointed  ;  but  from  that  date  to  the  present 
time  no  payment  whatever  has  been  made  on  account  of  them,  and  the 
corporations  have  become  completely  insolvent.  Upon  this,  payment 
of  the  interest  on  the  bonds  was  sought  to  be  obtained  from  the  terri- 
torial government,  in  accordance  with  the  terms  of  the  bonds ;  but  the 
claim  was  refused,  and  in  1842  the  territorial  legislature  passed  reso- 
lutions declaring  that  the  governor  and  counsel  were  "  never  invested 
with  authority  to  pledge  the  faith  of  the  Territory  so  as  to  render  the 
citizens  responsible  for  the  debts  or  engagements  of  any  corporation 
chartered  by  the  territorial  legislature."  The  revenue  laws  of  the 
Territory  were  also  suspended,  "  so  far  as  they  authorized  the  assess- 
ment and  collection  of  a  territorial  revenue  in  future,"  Avith  certain 
specific  exceptions.  These  acts  of  the  territorial  legislature  were  sub- 
mitted to  Congress,  and  were  permitted  to  pass  into  law  without  dis- 
approval.       ' 

From  this  time,  then,  until  the  admission  of  Florida  into  the  Union 
as  a  State,  the  territorial  legislature  persisted  in  its  repudiation  of 
the  engagments  contracted  on  the  bonds  ;  and  although  the  subject 
WHS  repeatedly  brought  before  Congresj  in  various  ways — in  some 
cases  by  memorial  of  the  bondholders  praying  for  relief — no  action  of 
Congress  took  place,  and  the  bondholders  remained  without  redress. 

Let  us  pause  for  a  moment  to  consider  what  the  position  of  the 

19 


290 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


bondholder^)  and  Congress  would  have  been  had  the  faetH  already 
stated  constituted  the  whole  case. 

The  bondholders  advanced  their  money  on  an  engagement  entered 
into  by  the  agents  duly  constituted  by  Congress  for  the  government  of 
the  Territory,  for  the  payment  of  money  by  the  Territory  ;  such  en- 
gagement being  sanctioned  by  Congress^  its  acquiescence  in  the  passing 
of  the  bank  act  having  induced  the  public,  in  the  language  of  Mr. 
Chancellor  Kent,  to  invest  property  and  make  contracts  upon  the  faith 
and  validity  of  the  charter.  The  Territory  acknowledged  itself  to  be 
indebted  in  the  amount  of  the  bonds,  and  the  ''faith  of  the  Territory" 
was  pledged  for  the  repayment.  Now,  what  is  the  meaning  of  a  Ter- 
ritory or  State  acknowledging  itself  to  owe  a  debt,  and  pledging  its 
faith  for  the  liquidation  of  it  ?  It  plainly  meatfli  this — or  it  means 
nothing :  that  the  governing  power  engages  that  the  revenue,  re- 
sources, and  property  of  the  Territory  or  State  are  pledged  for  the  debt, 
and  shall  be  applied  to  its  discharge.  In  other  words,  an  obligation 
was  created  on  the  part  of  Florida  by  the  executive,  as  the  agent  of 
the  sovereign  power,  and  by  the  legislature,  as  the  agent  of  the  people, 
which  was  sanctioned  by  Congress,  to  pay  the  debt ;  that  obligation, 
in  fact,  operating  on  all  the  property  of  the  Territory  of  Florida. 

It  has  been  already  shown  that  the  government  of  the  Territory 
"was  at  the  absolute  disposal  of  the  United  States,  (represented  by  Con- 
gress,) in  whom  the  right  of  eminent  domain  was  vested,  and  that 
Congress  assented  in  the  fullest  manner  to  the  pledge  which  was  given 
by  the  territorial  government.  There  was,  then,  an  engagement  to 
apply  the  resources  of  the  Territory  for  the  payment  of  a  debt  incur- 
red with  the  assent  of  the  sovereign  power.  Upon  this  state  of  facts 
it  is  obvious  that,  if  those  principles  of  equity  which  are  binding  on 
individuals  be  applicable  to  States,  it  became  the  duty  of  Congress  to 
see  that  the  funds  which  it  had  permitted  to  be  pledged  should  be  ap- 
plied to  the  discharge  of  the  debts  they  were  intended  to  secure,  and 
the  bondholders  were  entitled  to  call  upon  the  United  States  govern- 
ment to  cause  those  funds  to  be  applied  to  their  relief,  or  to  indemnify 
them  from  loss  arising  from  the  failure  to  do  so. 

The  duty  of  thus  protecting  the  interests  of  the  bondholders  was 
the  more  incumbent  on  Congress  from  the  fact  that,  by  reason  of  its 
being  the  owner  of  by  far  the  greater  portion  of  the  soil  of  the  Terri- 


CONVENTION   WITH   GREAT   BRITAIN. 


291 


tory,  it  was  the  party  most  benefited  by  the  introduction  of  the  bond- 
holders' capital  into  the  Territory. 

But  if  the  position  of  the  bondholders  was  such  ns  I  have  stated  it 
to  have  been  while  Florida  continued  a  Territory,  it  will  be  found  that 
their  claim  assumed  an  entirely  new  form,  and  acquired  immeasurably 
more  force,  from  the  moment  that  the  Territory  was  admitted  to  the 
Union  as  an  independent  State. 

This  admission  took  place  on  March  3,  1845.  ,- 

By  the  second  section  of  the  eighth  article  of  the  constitution  of  the 
new  State,  which  received  the  assent  of  Congress,  it  was  declared  that 
"  no  other  or  greater  amount  of  tax  or  revenue  shall  at  any  time  be 
levied  than  may  be  required  for  the  necesssary  expenses  of  govern- 
ment." ^' 

By  the  introduction  of  this  clause  into  the  constitution.  Congress 
appears  to  have  designed  to  lend  efffjct  to  the  repudiating  resolutions 
of  the  territorial  legislature,  to  which  it  had  already  given  its  assent. 

It  has^  indeed,  been  denied,  in  the  course  of  the  argument,  that  this 
clause  was  intended  to  have,  or  had,  the  effect  of  preventing  the  State 
from  raising  revenue  in  order  to  pay  the  debts  of  the  Territory  ;  but 
if  any  doubt  could  exist  on  this  point,  it  must  be  removed  by  the  fact 
that  those  best  able  to  judge  of  the  meaning  of  the  constitution  of 
Florida,  and  having  the  power  to  enforce  its  own  interpretation — viz  : 
the  legislature  of  the  State — have  declared  that  they  are  precluded  by 
the  article  of  the  constitution  in  question  from  levying  any  tax  to 
provide  for  the  payment  of  the  interest  or  principal  of  these  bonds, 
or  from  entering  on  any  consideration  of  the  question  at  all. 

It  was  then,  when  Congress  admitted  the  insertion  of  this  clause 
with  a  full  knowledge  of  the  injustice  it  would  work,  that  the  power 
to  pay  was  taken  away  from,  the  State  that  was  then  being  called  into 
existence.  But  tfAs  was  not  all ;  for  the  power  which  had  hitherto  been 
vested  in  Congress  by  virtue  of  its  very  sovereignty,  whenever  it  chose 
to  exercise  it,  to  compel  a  Territory  to  observe  the  obligation  of  a  con- 
tract, or  to  do  that  which  it  was  legally  and  morally  bound  to  do,  was 
also  divested  by  the  change  thus  effected  in  the  form  of  the  govern- 
ment of  Florida.  And  by  whom,  if  not  by  Congress,  which,  first,  by 
its  acquiescence  in  the  law  establishing  the  bank,  and,  secondly,  by 
the  permission  granted  to  its  agents  to  pledge  the  faith  of  the  Terri- 
tory over  which  it  had  a  sovereign  and  complete  authority,  had  in- 


m 


III 


292 


ADJUSTMENT  OF  CLAI1I8   UNDER  THE 


duccd  these  loans  upon  the  proniise  of  repayment  by  the  Territory, 
which  repayment,  with  full  knowledge  of  the  insolvency  of  the  cor- 
porations and  the  immediate  pressing  liability  of  the  Territory,  it  has 
thus  rendered  impossible? 

The  argument  of  the  United  States  agent  has  been  directed  to  show 
that  the  Territory  alone  was  originally  liable  on  these  bonds,  and  that 
that  liability  has  been  transferred  to  the  State.  It  is  due  to  the 
learned  counsel  to  say  that  nothing  could  be  more  candid  and  com- 
plete than  his  disavowal  of  those  doctrines  of  repudiation  which  the 
territorial  legislature  i)ropoundcd,  and  he  states  a  very  confident  hope 
that  the  public  opinion  of  America  will  compel  the  State  of  Florida 
to  do  justice  to  the  present  claimants.  But  by  whose  act  is  it  that  the 
bondholders  have  only  that  prospective  operation  of  public  opinion  to 
look  to  for  their  relief? 

It  being  conceded,  then,  that  the  Territory  owed  the  debt,  it  follows 
that  it  was  legally  bound  to  pay  it.  The  Territory  in  its  corporate 
capacity  was  the  debtor,  and  might  have  been  sued  before  a  competent 
tribunal.  Whether  any  of  the  ordinary  courts  of  law  in  the  United 
States  could  have  entertained  the  claim,  I  am  not  able  to  say.  The 
opinion  of  an  American  jurist  has  indeed  been  produced,  to  the  efiect 
that  the  Territory  could  have  been  sued  in  the  United  States  courts  ; 
but  it  is  immaterial  to  consider  this  point,  for  whether  it  be  so  or  not. 
Congress,  the  sovereign  power,  had  undoubtedly  the  right  and  the 
means  of  compelling  the  Territory  to  discharge  its  obligations.  There 
was,  then,  a  competent  tribunal  before  which  the  Territory  could  be 
summoned,  and  by  which  it  might  have  been  adjudged  to  pay  its 
debts.  It  matters  not,  in  principle,  whether  that  tribunal  was  one  of 
the  ordinary  judicial  ones  or  not.  All  judicial  authority  is  but  the 
exercise  of  the  sovereign  power  directed  to  tho  object  of  securing  that 
right  be  done  within  its  jurisdiction.  Where  a  direct  appeal  to  the 
sovereign  power  is  proper,  it  ought  to  be,  and  is,  as  efficient  a  means 
of  obtaining  the  redress  of  a  grievance  as  an  appeal  to  the  ordinary 
court  of  judicature.  Such  an  appeal,  under  the  name  of  a  petition  of 
right,  is,  in  this  country,  the  established  mode  of  administering  jus- 
tice where  the  crown  is  the  party  complained  against.  It  cannot  be 
presumed  that  an  appeal  to  Congress,  to  compel  its  dependencies  to 
perform  the  contracts  it  liad  authorized  them  to  enter  into,  would 
have  been  either  inoperative  or  valueless. 


CONVENTION   WITH   GREAT    BRITAIN. 


293 


While,  then,  Florida  remained  n  Territory,  the  ineann  exinted  ol" 
compelling  it  to  perform  the  contrnctH  entered  into  in  its  name  ;  hnt 
from  the  moment  that  it  became  u  State  the  creditors  of  the  former 
Territory  were  depriv.  1  of  all  means  whatever  of  enforcinj!,  t' oir  just 
demands. 

For  the  8tat6  of  Florida,  to  whotr  it  is  said  the  del)ts  of  the  Terri- 
tory have  been  truriHforred,  cannot  be  sued  by  the  creditors  ;  for  the 
Constitution  cxprcsslv  oiiacts  that  no  Htato  can  be  sued  in  the  United 
States  courts,  and  of  course  u  State  cannot  be  sued  in  its  own  courts. 

Nor  can  Congress  compel  Florida  to  pay  its  debts ;  for  it  is  an  inde- 
pendent State,  and  cannot  be  coerced  by  the  others,  either  singly  or 
collectively,  into  doing  even  that  which  is  its  duty. 

And,  lastly,  not  only  has  Congress,  by  admitting  Florida  as  a  State, 
deprived  the  creditors  of  the  means  of  enforcing  their  rights,  but  it  has 
bestowed  upon  the  State  a  Constitution  which  actually  prevents  it 
from  paying  its  debts. 

It  is  a  mockery,  under  these  circumstances,  to  refer  the  bondholders 
to  the  State  as  their  debtor.  What  difference  is  there  in  principle 
between  confiscating  a  debt,  and  rendering  it  impossible  that  payment 
can  be  enforced  on  the  one  hand,  or  voluntarily  conceded  on  the 
other  ? 

It  is  not  for  individuals  to  pronounce  an  opinion  on  the  policy  of  the 
United  States  in  thus  starting  one  of  its  children,  in  its  political  man- 
hood, incapacitated  from  discharging  the  debts  which  it  had  incurred 
during  infancy  for  its  own  and  its  parent's  benefit.  There  may  have 
been  better  reasons  than  I  am  acquainted  with  for  relieving  the  State 
of  Florida  from  the  burden  of  the  obligations  created  by  the  Territory ; 
but  it  has  long  been  a  settled  principle  of  legislation  in  all  civilized 
nations,  that  no  public  advantage  is  to  be  attained  by  the  destruction 
of  private  interests,  without  compensation  being  made  to  the  individ- 
uals injured.  If  it  was  for  the  general  good  that  the  inhabitants  of 
Florida  should  not  be  taxed  alone  for  the  payment  of  money  advanced 
to  their  former  government,  justice  imperatively  requires  that  the  re- 
payment of  the  money  should  be  provided  for  from  national  sources. 

It  has,  indeed,  been  suggested  that,  as  it  is  in  the  power  of  the  State 
of  Florida  at  some  future  time  to  change  its  constitution,  so  as  to 
enable  it  to  raise  revenue  for  the  payment  of  these  bonds,  it  cannot 
be  said  that  the  bondholders  are  deprived  of  a  remedy.     But  we  have 


\ 


! 


0i 

m 


294 


ADJUSTMENT  OF   CLAIMS    UNDER  THE 


IJ^ 


to  deal  with  the  case  upon  existing  facts,  and  not  upon  possible 
though  highly  improbable  contingencies.  Such  an  argument  would 
equally  apply,  if  the  claim  were  a  direct  one  upon  the  United  States, 
and  payment  had  been  rendered  impossible  by  a  clause  in  the  United 
States  Constitution.  Or  sujipose  that  an  article  of  the  union  between 
England  and  Ireland  had  been  inserted  prejudicial  to  the  existing  in- 
terests of  an  American  citizen,  would  it  be  a  valid  answer  for  the  gov- 
ernment of  the  United  Kingdom  to  say  that  the  imperial  Parliament 
might  possibly  at  a  future  period  repeal  the  obnoxious  clause,  and 
restore  the  United  States  citizen  to  his  former  position  ? 

The  debt,  then,  is  at  present  practically  confiscated.  This  is  the 
wrong  which  is  complained  of,  and  we  have  to  determine  whether  it 
is  one  for  which  the  United  States  is  answerable.  The  possibility  of  a 
better  state  of  public  opinion  inducing  the  inhabitants  of  Florida  at 
some  future  time  to  remodel  their  constitution,  so  as  to  rescind  the  ex- 
isting confiscation,  cannot  aifect  the  rights  and  liabilities  arising  out 
of  the  present  state  of  facts. 

The  principal  arguments  advanced  in  opposition  to  the  claim, 
which  I  have  not  already  incidentally  adverted  to,  are  these  : 

1.  That  Congre&s,  having  only  the  powers  enumerated  by  the  Con- 
stitution, can  do  no  more  than  is  to  be  found  within  that  document,^ 
and  that  the  power  to  pay  the  debts  of  a  Territory  is  not  sjiecified  or 
to  be  implied. 

2.  That  Congress  has  not  the  power  of  rejecting  the  clause  of  the 
constitution  of  the  proposed  State  of  Florida  which  forbade  the  col- 
lecting of  revenue  for  any  other  purpose  than  the  necessary  expenses 
of  government,  but  that  it  was  bound  to  admit  the  new  State  with 
this  clause  in  its  constitution,  however  objectionable  it  may  be. 

The  first  of  these  objections  tends  to  raise  a  discussion  on  a  point 
which  has  long  been  definitively  settled  in  the  United  States. 

In  the  first  place,  it  assumes  the  whole  question  at  issue  in  this 
case.  If  the  United  States  have,  by  the  acts  of  Congress,  incurrec'  an 
obligation  to  indemnify  the  present  claimants,  then  a  debt  has  arit.en^ 
acd  Congress  has  express  power  to  levy  taxes  in  order  to  pay  its  debts. 
I  presume  that  it  is  not  necc^siry  to  show  by  argument  that  a  tech- 
nical meaning  is  not  to  be  attached  to  the  word  debts,  but  that  it 
signifies  any  pecuniary  claim,  whether  for  a  sum  certain  or  for  un- 
liquidated damages.     But,  secondly,  the  Constitution  only  prescribes 


t 


a 


CONVENTION   WITH   GREAT   BRITAIN. 


296 


,  point 


the  purposes  for  which  taxes,  &c.,  are  to  be  levied  ;  it  is  wliolly  silent 
as  to  tlie  appropriation  of  national  funds  arising  from  other  sources, 
such  as  the  sale  of  public  lands  ;  and  it  has  been  shown  that  this  is  a 
source  of  revenue  which  is  peculiarly  proper  to  be  applied  to  the  relief 
of  the  present  claimants.  And ,  lastly,  the  Constitution  has  never  been 
construed  in  the  United  States  in  the  narrow  spirit  in  which  it  is 
now  sought  to  interpret  it.  It  is  fully  established  by  Mr.  Justice 
Story,  in  his  "Commentaries  on  the  Constitution,"  bookS,  ch.  14, 
that  Congress  hp.s  full  i)ower  to  apply  the  funds  of  the  nation,  from 
whatever  source  derived,  to  all  purposes  which  tliey  may  deem  na- 
tional. 

That  learned  writer  concludes  his  remarks  with  these  words:  "In 
regard  to  the  practice  of  government^  it  has  been  entirely  in  con- 
formity to  these  principles.  Appropriations  have  never  been  limited 
by  Congress  to  cases  falling  within  the  specific  powers  enumerated  in 
the  Constitution,  whether  those  powers  be  construed  in  their  broad  or 
narrow  sense.  And  in  an  especial  manner  appropriations  have  been 
made  to  aid  internal  improvements  of  various  sorts,  in  our  roads,  our 
navigation,  our  streams,  and  other  objects  of  a  national  character  and 
importance.  In  some  cases,  not  silently  but  upon  discussion.  Con- 
gress has  gone  the  length  of  making  appropriations  to  aid  destitute 
foreigners  and  cities  laboring  under  severe  calamities,  as  in  the  relief 
of  the  St.  Domingo  refugees  in  1794,  and  the  citizens  of  Venezuela, 
who  suffered  from  an  earthquake  in  1812. ' '  So  also  in  the  case  of  three 
cities  in  Columbia — Washington,  Georgetown,  and  Alexandria — Con- 
gress assumed  the  debt  which  these  cities  had  incurred,  and  for  the 
liquidation  of  which  their  public  faith  had  been  pledged;  and  the 
Secretary  of  the  Treasury  wa3  ordered  to  pay  it. 

It  is  a  misapprehension  of  the  power  of  Congress  to  suppose  that  it 
was  bound  to  admit  the  Territory  of  Florida  to  the  Union  without  any 
discretion  as  to  the  terms  upon  which  the  admission  was  to  take  place. 
The  time  and  mode  of  admission  were  entirely  for  Congress  to  deter- 
mine. Mr.  Justice  Story,  in  his  "Commentaries,"  sec.  1321,  shows 
that  precedents  and  judicial  decisions  "  have  established  the  rightful 
authority  of  Congress  to  impose  restrictions  upon  the  admission  of 
new  States."  But,  without  citing  authorities,  it  is  obvious  that  Con- 
gress cannot  be  regarded  as  having  merely  administrative  functions 
on  such  admission,  to  record  the  event  without  control  over  it.     It 


■  >i 

>  ii 


at 

m 


>  *! 


206 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


would  be  powerless  to  discharge  the  most  important  of  its  functions  as 
the  guardian  of  the  national  interests,  if  it  were  bound  to  admit  every 
new  State,  with  any  constitution  its  inhabitants  might  think  fit  to 
propose  for  themselves,  however  inconsistent  it  might  be  with  the 
general  welfare  of  the  Union,  with  private  morality,  or  with  public 
honor. 

It  will  not  be  necessary  to  examine  the  history  of  the  "Pensacola 
Bank"  and  the  *' Southern  Life  Assurance  Company,"  whose  obli- 
gations were  also  guarantied  by  the  territorial  government.  As 
against  that  government,  the  claim  of  the  holders  of  the  Pensacola 
Bank  bonds  is  strengthened  by  the  circumstance  that  that  company 
gave  the  territorial  government  very  considerable  security  on  real 
and  personal  property  against  the  liability  which  was  incurred  by 
pledging  the  public  faith.  The  claim,  however,  as  against  the  United 
States  government,  is  the  same  in  each  case. 

I  am  of  opinion,  therefore,  upon  these  facts,  that  the  United  States 
government  is  bound  to  pay  to  the  British  subjects  hereunder  enume- 
rated the  principal  of  the  bonds  of  which  they  are  the  holders,  when 
the  same  shall  become  due,  and  to  pay  to  them  forthwith  the  arrears 
of  interest  on  such  bonds,  with  interest  at  five  per  cent,  on  such 
arrears,  up  to  the  14th  September,  1854,  amounting  in  the  whole  to 
the  sum  set  opposite  their  names. 


L 


CONVENTION    WITH  GREAT   BRITAIN. 


297 


Bates,  Umpire: 

This  claim  has  been  brought  before  the  commissioners  by  the  hold- 
ers of  bonds  issued  by  the  "Territory  of  Florida/'  while  it  was  under 
a  territorial  government,  and  before  Florida  was  admitted  into  the 
Union  as  one  of  the  States  of  the  United  States. 

At  the  time  of  the  issue  of  the  bonds  in  question,  the  Territory  was 
governed  by  a  legislative  council  chosen  by  the  people,  the  governor 
being  appointed  by  the  President  of  the  United  States.  All  the  acts 
or  laws  of  the  legislative  council  were  required,  by  the  law  of  the 
United  States,  to  be  laid  before  Congress,  and  if  not  disapproved  of, 
they  became  law  in  Florida. 

For  one  portion  of  these  bonds,  the  claimants  contended  that,  by 
the  right  which  Congress  claimed  to  reject  or  veto  any  law  passed  by 
the  legislative  council  of  Florida,  the  United  States  government  ren- 
dered itself  liable  to  pay  the  interest  and  principal  of  these  bonds, 
should  Florida  fail  to  do  so. 

For  another  portion  of  the  bonds,  the  claim  on  this  ground  was 
abandoned,  and  their  claim  rvas  based  on  the  fact,  that  the  United 
States  had,  in  the  session  of  Congress  of  1843-'44,  admitted  Florida 
into  the  Union  with  a  constitution  having  the  following  clause  in  it : 
*'No  greater  amount  of  tax  or  revenue  shall  at  any  time  be  levied 
than  may  be  required  for  the  necessary  expenses  of  government. ' ' — 
{Artide  8  of  Florida  constitution.) 

The  first  ground  of  claim  need  hardly  be  treated  seriously ;  it  might 
as  well  be  contended  that  the  British  government  is  responsible  for 
all  the  Canada  debentures,  because  all  the  acts  passed  by  the  Canadian 
parliament  require  the  sanction  of  the  home  government  before  they 
became  laws.  It  will  be  seen,  however,  that  at  the  time  these  bonds 
were  bought  it  was  never  imagined  by  the  buyers  that  the  United 
States  were  in  any  way  liable. 

With  regard  to  the  second  ground  of  claim—  that  the  United  States, 
by  having  admitted  Florida  into  the  Union  as  a  State,  with  the  article 
in  her  constitution  above  referred  to,  were  rendered  liable  to  pay  the 
debts  of  Florida — it  may  be  remarked,  that  Congress  could  not  justly 
refuse  to  admit  Florida  into  the  Union  with  such  a  constitution; 
there  was  nothing  in  it  contrary  or  in  violation  of  the  Constitution  of 
the  United  States ;  Congress  had  only  the  power  to  fix  the  time  of 


tri 


V^ 


,.; 


■  Si 


298 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


admission,  and  reject  any  constitution  that  was  contrary  to  the  Consti- 
tution of  the  United  States ;  nor  does  it  appear  that  the  hondholders 
are  in  any  way  damaged  by  this  article  in  the  constitution  of  Florida. 

If  the  people  of  Florida  refused  to  pay  or  neglected  to  pay,  as  a 
Territory,  would  they  be  more  likely  to  pay  as  a  State?  There  would 
be  the  same  people  to  deal  with ;  the  members  of  the  convention  that 
formed  the  constitution  were  chosen  by  the  people ;  and  the  legisla- 
ture, chosen  by  the  people,  would  not  bo  likely  to  bo  very  different 
from  the  convention.  It  is  by  no  moans  clear  that  the  eighth  article 
of  tlie  constitution  forbids  any  taxes  for  liquidating  the  liabilities  of 
the  State  ;  and  if  that  be  so,  there  is  no  difficulty  in  amending  the 
constitution.  Most  of  the  States  have  amended  their  constitutions  from 
time  to  time.  The  bondholders  have  the  same  remedy  against  the 
State  as  they  had  against  the  Territory ;  they  have  a  just  claim.  But 
they  are  under  the  well  known  disadvantage  in  both  cases — they  could 
not  sue  the  Territory,  they  cannot  sue  the  State. 

It  has  been  urged  that  there  is  no  way  of  getting  at  a  State  govern- 
ment except  through  the  government  of  the  United  States ;  this  is  a 
mistake.  There  is  no  difficulty  in  the  way  of  individuals  dealing  with 
the  separate  States  in  any  matters  that  concern  the  State  alone ;  nearly 
all  the  States  have  public  works  and  contract  loans  with  individuals, 
American  and  foreign,  and  any  person  aggrieved  may  petition  the 
governor  or  legislature  for  relief.  A  State  cannot  deal  with  a  foreign 
government ;  the  intercourse  with  foreign  nations  belongs  to  the  gen- 
eral government. 

To  show  that  the  Florida  bondholders  never  supposed  the  United 
States  in  any  way  responsible,  attention  is  called  to  the  prospectus 
issued  by  the  agents  for  the  sale  of  the  bonds  created  for  the  ''Union 
Bank;"  it  is  as  follows  : 

'  Florida  six  per  cent,  sterling  bonds — Interest  and  principal  payable  at 
the  house  of  Messrs.  Palmers,  MacKillop,  Dent,  &  Co. 

''These  are  the  bonds  of  the  Territory  of  Florida,  payable  to  the 
order  of  the  Union  Bank  of  Florida,  and  endorsed  by  the  bank.  They 
are  in  sums  of  one  thousand  dollars  each,  bearing  interest  at  the 
rate  of  six  per  cent,  per  annum,  payable  half  yearly ;  the  interest  and 
principal  payable  in  London,  at  the  rate  of  4«.  ^d.  sterling  per  dollar. 
The  bonds  are  payable  on  the  1st  of  January,  1862,  1864,  1866,  and 


CONVENTION   WITH   GREAT   BRITAIN. 


299 


1868.  The  proceeds  of  the  sale  of  the  bonds  form  an  addition  to  the 
active  capital  of  the  Union  Bank.  The  bank  commenced  business  on 
the  16th  of  January,  1835,  with  a  capital  of  one  million  of  dollars, 
with  a  privilege  of  incieasing  it  to  three  millions  ;  and  it  is  to  com- 
plete that  increase  of  capital  that  these  bonds  are  to  be  sold.  The 
profits  of  tlic  bank,  alter  paying  interest  of  bonds  and  expenses  of 
management,  are  retained  to  accumulate  as  a  sinking  fund,  until  that 
fund  shall  be  equal  in  amount  to  the  bonds  issued. 

"  On  the  1st  January,  1839,  upon  a  bank  capital  of  one  million  of 
dollars,  the  amount  of  the  sinking  fund  exceeded  three  hundred  thou- 
sand dollars.  Owing  to  peculiar  circumstances  the  profits  of  the  past 
year  have  been  very  large  ;  but  previous  experience  has  proved  that, 
in  ordinary  years,  (after  paying  the  interest  of  its  capital  and  the  ex- 
pense of  management,)  the  annual  surplus  profits  of  the  bank  (which 
will  be  adtlcd  to  the  sinking  fund)  will  exceed  four  per  cent.  ;  which 
annuity,  compounded  at  the  bank  interest  at  8t  per  cent.,  will  cause 
the  sinking  fund  to  effect  its  object  in  fourteen  years.  Indeed,  the 
present  amount  of  that  fund,  compounded  at  the  bank  interest,  would 
pay  off  the  whole  $3,000,000  of  bonds  in  twenty-eight  years,  without 
any  aid  from  the  future  annual  profits  of  the  bank — the  average  ma- 
turity of  the  bonds  being  twenty-six  years. 

"The  capital  of  the  bank,  equal  in  amount  to  the  bonds  and  the 
sinking  fund,  are  l^o  be  retained  and  held  as  security  for  the  repay- 
ment of  the  bonds.  Another  ample  security  for  their  payment  is  pro- 
vided by  a  mortgage  of  the  property  of  the  stockholders  of  the  bank, 
to  the  extent  of  three  millions  of  dollars.  The  value  of  the  property 
mortgaged  for  that  object  was  first  ascertained  by  the  appraisement, 
upon  oath,  of  five  commissioners  in  each  county,  appointed  for  that 
purpose  by  the  governor  and  legislature  of  the  Territory  ;  and  these 
appraisements  were  again  subjected  to  the  revision  of  a  board  of  twelve 
directors,  of  whom  five  are  appointed  by  the  governor  and  legislature. 
So  great  has  been  the  rise  in  value  of  every  kind  of  property  in  Forida, 
that  the  property  mortgaged  to  the  bank  would,  even  now,  sell  for 
thrice  the  amount  of  the  bonds,  and  each  succeeding  year  necessarily 
enhances  its  value  ;  the  holders  of  the  bonds  have  therefore  a  fourfold 
security  for  their  payment,  viz  : 

"1.  The  capital  of  the  bank,  equal  in  amount  to  the  bonds. 

**2.  The  sinking  fund,  which  will  effect  its  object  in  fourteen  years. 


i;i; 


1;.' 


If  1. 1 


300 


ADJUSTMENT  OF  CLAIMS  UNDEB  THE 


"3.  The  property  of  the  stockholders,  originally  appraised  at  three 
millions,  with  its  increased  value. 

''4.  The  faith  and  credit  of  the  Territory  and  State  of  Florida. 

"  By  the  direction  of  an  act  of  Congress  a  convention  is  now  in  session 
for  the  purpose  of  framing  a  constitution  for  Florida,  and  she  will 
prohably  become  a  State  this  year. 

"  In  extent  of  territory  she  will  be  the  sixth  State  in  the  Union.  Her 
soil  and  climate  are  adapted  to  the  profitable  productions  of  Sea  Island 
and  short  staple  cottons,  sugar,  rice,  Cuba  tobacco,  indigo,  cochineal, 
corn,  and  all  the  other  agricultural  staples  of  the  southern  States,  as 
well  as  many  of  the  productions  of  the  West  Indies.  She  is  rapidly 
increasing  in  numbers  and  wealth. 

"  Her  export  of  cotton  in  the  past  year  has  exceeded  110,000  bags  ; 
and,  with  her  growth,  is  greatly  extending.  She  possesses  the  only  good 
harbors  on  a  coast  of  near  two  thousand  miles  in  the  Gulf  of  Florida, 
which,  with  the  contiguity  of  the  West  Indies,  gives  her  great  com- 
mercial advantages,  and  will  insure  her  becoming  a  great  commercial 
State." 

The  securities  enumerated  in  this  document  are  four,  and  they  were 
ample  if  honestly  administered ;  but  not  the  slightest  allusion  is  made 
to  any  liability  of  the  United  States,  nor  is  there  discoverable  the 
smallest  claim  of  the  bondholders  before  this  commission,  which  is 
constituted  for  the  purpose  of  settling  the  claims  of  British  subjects 
against  the  government  of  the  United  States,  or  of  the  citizens  of  the 
United  States  against  the  British  government.  The  bondholders  have 
a  just  claim  on  the  State  of  Florida  ;  they  have  lent  their  money  at  a 
fair  rate  of  interest,  and  the  State  is  bound  by  every  principle  of  honor 
to  pay  interest  and  principal ;  and  it  is  to  be  hoped  that  sooner  or 
later  the  people  of  Florida  will  discover  that  honesty  is  the  best  policy ; 
and  that  no  State  can  be  called  respectable  that  does  not  honorably 
fulfil  its  engagements. 


CONVENTION  WITH   GREAT  BRITAIN. 


301 


GODFREY,  PATTISON  k  CO. 


The  second  article  of  t)ie  treaty  of  commerce  of  July  3«  1815,  between  the  United  States 
and  Great  Britain,  provides  "  that  no  higher  or  other  duties  shall  be  imposed  on  the  impor- 
tation into  the  United  States  of  any  articles,  the  growth,  produce,  or  manufacture  of  his  Brit- 
annic Majesty 's  territories  in  Europe,  than  are,  or  shi^ll  be,  payable  on  the  like  articles,  being 
the  growth,  produce,  or  manufacture  of  any  other  foreign  country." 

The  act  of  Congress,  passed  August  30,  lti43,  changed  and  modified  the  laws  imposing 
duties  on  imports,  so  that  the  duties  on  cotton  goods  were  nearly  double  those  taxed  by  the 
prior  statute.  This  act  took  effect  two  days  after  its  passage,  but  provided,  "  that  nothing 
in  the  act  should  apply  to  goods  shipped  in  vessels  bound  to  any  port  of  the  United  States 
having  actually  left  her  last  port  of  lading  eastward  of  the  Cape  of  Good  Hope,  or  beyond 
Cape  Horn,  prior  to  the  1st  of  September,  1842." 

Held  that  the  provision  as  to  equality  of  duties  on  importations  applied  to  the  time  of 
arrival  of  such  goods  for  entry  in  the  country,  without  reference  to  the  time  of  shipment,  and 
that  so  long  as  goods  shipped  from  ports  eastward  of  the  Cape  of  Good  Hope  were  received 
in  this  country  at  the  former  prescribed  rate  of  duty,  goods  sliippcd  from  ports  of  other  coun- 
tries, arriving  within  the  same  time,  were  entitled  to  enter  at  the  same  rate  of  duty. 

Where  duties  on  goods  were  paid  under  protest,  on  the  ground  that  a  higher  rate  of  duty 
was  demanded  than  was  authorized  by  the  treaty  of  commerce  t)etween  the  United  States  and 
Great  Britain,  the  act  itself  having  expressly  provided  "  that  nothing  contained  in  it  should 
conflict  with  that  treaty  ;"  and  immediate  demand  of  repayment  having  been  made  through 
the  minister  of  Great  Britain  at  Washington,  held  that  interest  should  be  allowed  on  the 
amount  wrongfully  collected  from  the  time  of  payment. 


The  facts  in  the  case  will  be  found  sufficiently  set  forth  in  the  opin- 
ion delivered. 
HanneNj  agent  and  counsel  for  Great  Britain. 
Thomas,  agent  and  counsel  for  the  United  States. 


*  *. 


'■: 


!;■ 


S02 


ADJUSTMENT   OP  CLAIMS   UNDER   THE 


The  opinion  of  the  board  was  delivered  by 
Upiiam,  United  States  Commissioner : 

This  is  a  claim  to  recover  back  the  amount  of  duties  paid  on  certain 
cotton  goods  imported  into  New  York  and  Boston,  by  the  claimants, 
merchants  of  Glasgow,  between  the  29th  of  August,  1842,  and  the 
13th  of  May,  1843,  on  the  ground  that  the  duties  thus  paid  were  as- 
sessed in  violation  of  certain  provisions  in  the  treaty  of  commerce 
between  the  United  States  and  Great  Britain,  of  the  3d  of  July,  1815, 
and  which  has  been  subsequently  renewed  and  continued  in  force  to 
the  present  time. 

By  the  second  article  of  that  convention,  it  is  provided  "that  no 
higher  or  other  duties  shall  be  imposed  on  the  importation  into  the 
United  States  of  any  articles,  the  growth,  produce,  or  manufacture  of 
his  Britannic  Majesty's  territories  in  Europe,  than  are  or  shall  be 
payable  on  the  like  articles,  being  the  growth,  produce,  or  manufacture 
of  any  other  foreign  country." — (Latvs  of  the  United  States,  vol.  8,  p. 
229,  Peters's  eel) 

It  is  contended  that  this  provision  of  the  treaty  has  been  violated 
by  the  25th  section  of  the  act  of  Congress,  of  the  30th  of  August,  1842, 
changing  and  modifying  the  laws  imposing  duties  on  imports. 

By  that  act,  the  duties  on  many  articles  were  essentially  changed, 
and  those  on  cotton  goods  were  very  nearly  doubled.  It  took  effect, 
also,  two  days  after  its  passage,  so  as  to  give  no  previous  notice  to 
those  merchants  who  had  shipments  on  the  way,  or  had  ordered  goods 
for  tliis  i)urpose.  It  exempted,  however,  from  its  operation  a  certain 
class  of  shipments  from  remote  places,  apparently  from  the  hardship 
of  the  case,  without  taking  into  consideration  that  it  was  equally  im- 
possible to  communicate  with  Liverpool  within  the  short  space  prior 
to  the  act  taking  eifect,  as  with  the  remote  countries  named. 

The  25th  section  of  the  act  provided  "that  nothing  in  the  act  should 
apply  to  goods  shipped  in  vessels  bound  to  any  port  of  the  United  States, 
having  actually  left  her  last  port  of  lading,  eastward  of  the  Cape  of  Good 
Hope,  or  beyond  Cape  Horn,  prior  to  the  1st  day  of  September,  1842." 

Objection  was  taken  at  once  to  the  inequality  created  by  this  provi- 
sion. It  was  contended  that  shipments  made  from  Liverpool  and 
other  British  ports  were  entitled  to  the  same  exemption.  The  increased 
rate  of  duty  was,  however,  demanded  on  importations  from  those  ports, 
and  payment  was  made  under  protest. 


OONVBMTION   WITH   GREAT   BRITAIN. 


303 


goods 


Claims  arising  from  sucli  payment  were  early  presented  to  the  notice 
of  the  United  States  government,  and  were  made  a  subject  of  corres- 
pondence. Such  claims  were  adjusted,  in  part,  so  far  as  regarded  ship- 
ments conceded  to  have  been  actually  made  prior  to  SeptemV  1,  1842. 
Other  claims,  where  some  controversy  existed  as  to  what  coxistituted 
shipment  prior  to  such  time,  were  left  I'udecided,  and  are  now  presented 
for  consideration.  A  further  claim  is  also  presented  for  repayment  of 
the  excess  of  duties  assessed  on  British  cottons,  to  May  13,  1843,  up 
to  which  time,  it  is  alleged,  vessels  continued  to  arrive  from  ports 
eastward  of  the  Cape  of  Good  Hope  with  cotton  goods,  which  were  ad- 
mitted, subject  to  the  rate  of  duty  prescribed  under  the  prior  statute. 

Under  the  first  claim,  which  is  now  presented  for  consideration,  evi- 
dence was  offered  that  shipments  were  made  from  Glasgow,  prior  to 
September  1,  to  be  forwarded  from  Liverpool.  It  appears  that  the 
vessel  in  which  they  were  imported  did  not  leave  Liverpool  until  the 
3d  or  4th  of  September.  It  is  contended,  however,  that  the  shipment 
should  date  from  Glasgow,  where  the  goods  were  manufactured,  and 
from  whence  they  were  forwarded ;  and  cases  were  cited  where  such 
a  construction  was  allowed  in  reference  to  goods  shipped  from  ports 
eastward  of  the  Cape  of  Good  Hope,  under  similar  circumstances,  where 
the  prior  rate  of  duty  was  charged.  The  evidence  offered  goes  far  to 
show  that  the  shipment  should  date  from  the  time  contended  for. 

It  is  unnecessary,  however,  to  determine  that  question  as,  under  the 
views  we  now  entertain,  the  allowance  of  this  claim  will  be  included 
in  the  further  claim  for  repayment  of  excess  of  duties  on  importations 
up  to  May  13,  1843. 

This  claim  is  based  on  the  provision  in  the  convention  of  1815,  that 
the  same  duties  shall  be  assessed  on  imports  from  Great  Britain  into 
the  United  States,  as  on  like  articles  from  any  other  country,  and  so 
long  as  goods  continued  to  be  received,  from  any  other  country,  from 
any  other  cause  whatsoever,  under  the  reduced  tariff,  so  long  it  is  con- 
tended British  goods  should  be  received  on  like  terms. 

It  has  been  argued  that  an  importation  of  goods  may  apply  to  the 
whole  period  of  transit,  commencing  from  the  time  of  leaving  a  foreign 
country;  and  that  if  the  rule  of  equality  was  established  from  such 
time,  the  provision  of  the  treaty  would  be  justly  complied  with.  The 
commissioners,  however,  are  not  prepared  to  assent  to  such  a  construc- 
tion.    Goods  cannot  be  said  to  be  imported  until  the  term  of  transit 


.k 


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II  Iff! 


% 


804 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


is  completed,  and  they  have  actually  arrived  at  their  destination  ; 
and  we  are  of  opinion  that  as  long  as  goods  were  received  from  the 
East  Indies  at  the  reduced  rate  of  duty  prescribed  in  the  prior  statute, 
they  w  ere  entitled  to  be  received  from  Great  Britain  charged  at  the 
same  rate  of  duty.  This  is  the  only  interpretation  which  it  seems  to 
us  conforms  to  the  just  intent  of  the  treaty. 

A  construction,  at  least  as  favorable  as  that  adopted  by  us,  was 
given  to  this  clause  of  the  treaty  by  the  British  government  on  a 
claim  in  behalf  of  American  citizens  for  re-payment  of  the  duty 
charged  on  rough  rice.  That  claim  was  for  a  long  time  under  consid- 
eration, and  was  settled  by  directing  the  excess  of  duties  exacted  to  be 
repaid^  as  long  as  African  rough  rice  had  been  allowed  by  law  to  be 
imported  into  England  at  a  lower  duty  than  was  charged  on  Ameri- 
can rice. 

The  commissioners  are  of  opinion  that  the  precedent  established  in 
that  case  was  based  on  sound  principle,  and  they  direct  that  *  le  excess 
of  duties  exacted  on  cotton  goods  imported  by  the  clairaaats  prior 
to  May  13,  1843,  shall  be  refunded.  ^   ^^ 

^  A  question  of  payment  of  interest  has  also  been  raised.  It  appears 
that  at  the  time  the  duties  were  demanded  the  claimants  formally 
protested  to  the  collectors  of  New  York  and  Boston  against  the  rate 
of  duty  assessed,  as  contrary  to  treaty  stipulations.  They  also 
claimed  protection  from  Mr.  Fox,  her  Majesty's  minister,  at  Washing- 
ton. The  United  States  government  was,  therefore,  from  the  first, 
informed  that  the  payment  of  the  duty  would  be  resisted. 

The  act  itself,  also,  of  the  30th  of  August,  1842,  should  have  placed 
them  on  their  guard,  as  it  expressly  provides  "that  nothing  contained 
in  it  shall  be  construed  or  permitted  to  operate  so  as  to  interfere  with 
subsisting  treaties  with  foreign  countries." 

Under  these  circumstances,  we  are  of  opinion  interest  should  be 
allowed  on  tlie  claim  from  the  time  of  payment. 


■«^.- 


»•  .V. 


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CONVENTION  WITH  OBBAT   BRITAIlf. 


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DUTY  ON  WOOLEN  GOODS-C.  BARRY,  AGENT. 

King  and  Gracib. 

This  was  a  claim  for  a  return  of  the  excess  of  duty  charged  by 
Great  Britain  against  citizens  of  the  United  States,  on  woolen  goods 
exported  to  that  country,  over  and  above  those  charged  on  the  same 
description  of  goods  exported  to  other  countries. 

This  excess  of  duty  was  alleged  to  be  in  violation  of  reciprocal 
provisions  entered  into  between  the  two  countries,  by  the  treaty  of 
commerce  of  July  ii,  1815,  by  which  the  exports  and  imports  to  and 
from  either  country  to  the  other  were  placed  on  the  basis  of  those  of 
the  most  favored  countries. 

The  particular  grounds  of  this  description  of  claims,  and  the  vari- 
ous proceedings  had  in  reference  to  them,  are  fully  set  forth  in  the 
opinion  of  the  commissioners,  with  the  reasons  of  the  delay  of  their 
adjustment  to  the  present  time. 

This  claim  is  presented  with  a  view  to  some  general  decision  and 
order  in  reference  to  the  large  class  of  cases  of  the  same  character 
pending  before  the  commission. 

Thomas,  agent  and  counsel  for  the  United  States. 


H ANNEX. 


agent  and  counsel  for  Great  Britain. 


20 


4}i 


806 


ADJUSTMENT  OF  CLAIMS  UNDEB   THE 


t  1 


f-^. 


i 


The  opinion  of  the  commiesion  was  delivered  by 

Upham,  United  States  Commissioner: 

By  the  treaty  of  commerce  entered  into  between  the  United  States 
and  Great  Britain^  on  the  third  day  of  July,  1815,  it  is  provided,  in 
article  second,  that  "  no  other  or  higher  duties  shall  be  imposed  on 
the  exportation  of  any  articles  from  the  one  country  to  the  territory 
or  dominions  of  the  other  than  such  as  are,  or  may  be,  payable  upon 
the  exjwrtation  of  the  like  articles  to  any  other  foreign  country." 

A  similar  provision  is  made  as  to  importations:  "That  no  higher 
duty  on  importations  shall  be  imposed  on  articles  being  the  growth, 
produce,  or  manufacture  of  either  country  than  is  imposed  on  like 
articles  from  any  other  foreign  country."  It  is  further  provided  that 
there  shall  be  no  prohibition  of  the  importation  of  any  article  from 
either  of  the  governments  into  the  other  which  shall  not  equally 
extend  to  all  other  nations. — (Laws  of  the  United  States,  vol.  S,p.  228, 
Peters' s  ed.) 

These  provisions  are  essentially  the  same  as  those  introduced  into 
the  treaty  of  amity  and  commerce  between  the  two  countries  on  the 
19th  of  November,  1794,  at  least,  as  regards  importations.  The 
treaty  of  1815  was  to  continue  but  four  years.  It  has  been,  however, 
renewed  from  time  to  time,  and  is  still  continued  as  the  existing 
treaty  of  commerce  between  the  two  countries.  Similar  stipulations 
are  now  uniformly  introduced  by  the  United  States  into  her  treaties 
with  all  governments,  and  the  principle  thus  adopted  has  become  a 
settled  usage  and  common  law  among  nations. 

Treaties  containing  similar  provisions  were  subsequently  made  by 
Great  Britain  with  the  united  provinces  of  Rio  de  la  Plata  and  with 
Columbia  and  Mexico. 

It  would  naturally  be  supposed  that  articles  of  such  iin})ortance, 
and  dictated  by  such  just  grounds  of  intercourse  between  nations, 
would  have  been  scrupulously  maintained.  They  liave  been  violated, 
however,  in  some  instances,  tlirough  inadvertence,  by  careless  and 
hasty  legislation,  and,  at  other  times,  soeniingly  from  ignorance  of 
the  existence  of  such  provisions. 

The  first  case  tliat  attracted  attention,  us  a  ground  of  complaint 
under  these  treaties,  arose  from  an  unequal  assessment  of  duties  on 
the  exportation  of  British  manufactured  woolens  to  foreign  countries. 


been 


CONVENTION   WITH   GREAT  BRITAIN. 


807 


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become  a 

made  by 
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complaint 
duties  on 
countries. 


On  the  exportation  of  these  goods  to  the  United  States,  and  some 
other  countries,  an  ad  vahrcm  duty  of  ten  shillings  per  cent,  was 
asnesNed,  extending  back  to  the  date  of  the  treaty,  and  was  continued 
to  May  G,  lH:t(> ;  while,  during  a  large  portion  of  that  time,  the 
same  tlescription  of  goods  were  exported  free  of  such  duty  to  China, 
Java,  ManiUa,  Valparaiso,  Lima,  California,  Sec. 

American  shiiis  had  commenced  loading  for  these  countries  with 
cargoes  consistiugprincipally  of  woolen  goods;  and,  finding  they  were 
allowed  to  be  shipped  free  of  duty,  on  the  27th  of  December,  1826, 
application  was  made  to  the  board  of  customs  to  permit  the  shipment 
of  woolen  goods  to  the  United  States  with  the  same  exemption.  This 
privilege  was  refused. 

Afterwards,  on  the  20th  of  January,  1820,  it  was  ordered  by  the 
commissioners  of  customs  that  the  shipment  of  woolens  should  be 
made  to  the  United  States  upon  a  deposit  e(iual  to  the  amount  of  duty 
claimed,  until  such  time  as  the  decision  of  the  British  government 
upon  the  subject  could  be  had.  Exceptions  were  at  this  time  taken 
by  British  merchants  engaged  in  trade  with  tl)e  provinces  of  Rio  de 
la  Plata  and  Columbia,  on  account  of  a  similar  inequality  of  duties 
on  goods  shipped  to  those  countries,  and  the  excess  of  duties  charged 
was  directed  to  be  refunded,  by  orders  issued  from  the  treasury  in 
April  and  May,  1826. 

No  measures  having  been  taken  in  reference  to  the  shipment  of 
woolen  goods  to  the  United  States,  the  attention  of  the  privy  council 
for  trade  was  again  called  to  the  subject,  and  claim  was  made  that 
such  sums  as  had  been  levied  on  these  goods  contrary  to  the  stipula- 
tions of  the  treaty  should  be  refunded. 

On  the  20th  of  August  following,  an  order  of  the  committee  of  the 
privy  council  was  issued  in  reply  to  the  memorials  stating  the  opinion 
"  that,  as  the  duty  in  question  was  not  payable  upon  woolens  exjjorted 
to  foreign  places  within  the  limits  of  the  East  India  company's  char- 
ter, the  parties  were  entitled,  under  the  terms  of  the  treaty  with  the 
United  States,  to  a  like  exemption,  and  requesting  the  commissioners 
of  his  Majesty's  customs  to  discontinue  levying  that  duty  on  woolens 
exported  to  the  United  States,  and  to  other  countries  with  which  treaties 
containing  a  similar  right  of  exemption  had  been  concluded ;  and  that 
on  due  application  from  the  parties,  by  whom  such  export  duty  had 
been  paid,  the  same  sliould  be  returned  to  them." 


\ 


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ADJUSTMENT   OF  CLAIMS   UNDER   THE 


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The  board  of  commissioners,  notwithstanding  the  order,  refused  to 
refund  the  amount  of  duties  paid,  and  procured  an  act  of  limitation, 
passed  after  the  memorialist's  application,  that  duties  thus  assessed 
should  not  be  refunded  for  a  time  extending  back  beyond  a  term  of 
three  years. 

In  the  application  for  repayment  of  duties  on  woolens  shipped  to 
South  America,  an  attempt  had  been  made  to  apply  the  statute  of 
limitations  in  bar  of  a  portion  of  the  claims.  It  was,  however,  settled 
by  the  legal  advisers  of  the  crown  that  it  was  not  the  practice  to  apply 
the  statute  of  limitations  to  claims  under  treaties  with  foreign  States. 
The  memorialists  at  length  succeeded,  through  various  orders  issued 
in  1830,*  1831,  and  1832,  in  obtaining  a  return  of  duties  for  about  four- 
teen months— from  March,  1829,  to  May,  1830. 

Owing  to  the  various  difficulties  interposed  against  the  allowance 
of  this  claim,  and  in  regard  to  the  proper  vouchers  to  be  filed  to  sus- 
tain it,  application  was  made  to  the  American  government  in  1843  ; 
and  in  September  of  that  year,  Mr.  Everett,  then  American  minister 
at  London,  addressed  a  letter  to  the  British  government,  urging  pay- 
ment of  the  claim,  and  some  modifications  as  to  the  requirements  that 
had  been  made  of  the  evidence  to  sustain  it.  The  grounds  on  w^hich 
the  payment  of  the  claim  was  demanded  were  admitted  to  be  unanswer- 
able. No  action  was  had,  however,  in  reference  to  the  payment  of  the 
claim  until  December  3,  1845,  when  a  further  order  was  issued  from 
the  commissioners,  requiring  a  repayment  to  the  shippers  of  the  duties 
assessed  on  woolens,  running  back  to  a  period  of  three  years  prior  to 
the  26th  of  January,  1826,  at  which  time  the  practice  had  commenced 
of  making  payment  of  duties  under  protest  or  deposit. 

Within  such  period,  the  ordinary  evidence,  as  practiced  in  previous 
cases,  was  to  be  admitted.  The  claims  .were  to  be  allowed  and  paid 
in  the  name  of  the  shippers;  but  beyond  that  period  it  was  ordered  that 
return  was  to  be  made  c»nly  to  the  actual  owner  or  proprietor  of  the  goods 
at  (lie  time  of  shipment,  or  to  the  shipper,  or  consignee  of  the  goods,  on 
behalf  of  the  owner  or  proprietor  abroad,  on  production  of  a  power  of 
attorney,  or  other  legal  authority  from  such  owner  or  proprietor,  ac- 
companied by  affidavit  that  he  had  authorized  the  shippers  to  apply 
for  the  return  of  the  money. 

Under  this  order,  the  duties  illegally  assessed  were  ultimately  re- 
fiinded,  extending  back  to  January  26,  1823.    The  claim  for  excess 


NoJ 
own 
forwal 


CONVENTION  WITH  GREAT  BRITAIN. 


309 


Lised  to 
itation, 
issessed 
term  of 

pped  to 
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,  settled 

to  apply 
Q  States, 
rs  issued 
out  four- 

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in  1843 ; 
,  minister 
ging  pay- 
Qcnts  that 

on  which 
Linanswer- 
lent  of  the 
jsued  from 

the  duties 
,rs  prior  to 
sommenced 

in  previous 
1  and  paid 
dered  that 
of  the  goods 
e  goods,  on 
a  power  of 
)prietor,  ac- 
ers  to  apply 

timately  re- 
n  for  excess 


i 


of  duties  charged  still  remains  unadjusted  from  July  3, 1815,  to  Janu- 
ary 26,  1823,  and  the  present  application  is  made  before  us  in  order 
to  obtain  from  the  commission  such  order  and  direction  thereon  as 
may  be  applicable  to  these  cases  as  a  class. 

The  first  question  ariging  for  the  consideration  of  the  commission  is, 
whether  any  legal  bar  on  account  of  lapse  of  time  exists  against  sus- 
taining the  claim  for  a  return  of  duties. 

This  seems  now  hardly  to  be  contended  for,  where  a  treaty  is  made 
between  two  independent  powers ;  its  stipulations  cannot  be  deferred, 
modified,  or  impaired  by  the  action  of  one  party  without  the  assent  of 
the  other.  If  the  parties,  by  their  joint  act,  have  established  no  bar- 
rier in  point  of  time  to  the  prosecution  of  any  claims  under  a  treaty 
made  by  them,  then  neither  country  can  interpose  such  limit.  The 
case  admits  of  no  other  judicial  construction.  The  legal  advisers  of 
the  crown  concur  in  this  view,  and  the  commissioners  have  no  doubt 
on  the  point. 

It  is  conceded,  as  a  matter  of  fact,  that  an  inequality  in  duties  existed 
in  violation  of  the  provisions  of  the  treaty ;  and,  there  being  no  bar  to 
the  recovery  of  the  claim  from  lapse  of  time,  such  duties  should  be 
refunded.  We  have  only  to  determine,  then,  what  evidence  shall  be 
required  to  sustain  claims  of  this  character  before  this  commission. 

No  persons  can  prosecute  claims  here  but  citizens  of  either  country 
against  the  government  of  the  other.  Claims  cannot  be  allowed  to 
the  shippers,  as  has  heretofore  been  done,  but  to  citizens  of  the  United 
States,  who  are  the  actual  owners  and  proprietors  of  the  goods  ex- 
ported, and  evidence  must  be  had  from  the  custom-house  records,  or 
from  the  shippers,  of  the  amount  of  duties  paid  by  them  on  account  of 
such  persons,  and  the  awards  sustained  must  be  made  up  in  their 
names,  with  such  claims  of  interest  thereon,  if  any  shall  be  allowed, 
as  the  commissioners  may  direct. 

With  these  instructions,  as  to  the  views  of  the  commissioners,  the 
case  will  stand  continued  to  such  time  as  may  be  convenient  for  the 
parties  to  appear  before  us  with  evidence  in  conformity  to  the  opinion 
here  expressed. 

Note. — The  British  shippers  were  in  the  habit  of  entering  in  their 
own  name  goods,  in  the  gross,  for  the  payment  of  duty,  which  were 
forwarded  by  any  one  vessel  to  their  correspondents  abroad.     They 


f 


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■    "! 

''    ill 


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f-  ;, ; 


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5r 


,yf^'^^ff!m 


310 


ADJUSTMENT   OP  CLAIMS   UNDER   THE 


then  charged  the  amount  severally  paid  in  their  own  books.  The 
requisite  evidence  of  the  precise  duty  paid  by  the  American  importers, 
therefore,  could  not  be  had  from  the  custom-house  records  in  the  shape 
that  was  necessary. 

The  claims  for  the  return  of  duty  extended  from  July  3,  1815,  to 
January  26,  1823,  and  owing  to  the  length  of  time  which  had  elapsed, 
and  the  deaths  and  changes  in  firms,  great  delay  and  difficulty  was 
incurred  in  obtaining  from  the  books  of  the  shippers  the  proper  evi- 
dence of  the  amounts  severally  paid  by  the  American  owners  of  the 
goods  exported. 

The  claims  amounted  to  a  large  sum  due  to  numerous  importers. 
To  obviate  the  many  difficulties  in  sustaining  these  claims,  Mr.  Barry, 
the  agent  of  the  claimants,  entered  into  an  arrangement  with  the 
British  government  by  which  the  shipper's  accounts  should  be  taken, 
waiving  any  claim  to  the  allowance  of  interest  on  the  same,  and  that 
time  should  be  had  to  make  the  requisite  apportionment  to  the  several 
importers.  The  amount  paid  was  to  be  placed  to  the  order  of  the 
United  States  government,  and  paid  out  on  the  papers  being  filed. 

The  following  notice  from  Mr.  Barry,  the  agent  of  the  claimants, 
giving  notice  of  this  adjustment,  was  sent  to  the  commission,  which 
was  ordered  to  be  entered  upon  the  docket,  and  the  claims  were  with- 
drawn. 

London,  January  15,  1855. 

To  the  mixed  Commission  under  the  Conventioti  concluded  between  Great 
Britain  and  the  United  States  of  America. 

Gentlemen  :  Having  in  the  months  of  March  and  June,  last  year, 
as  agent,  submitted  to  the  mixed  commission  the  claims  of  the  parties 
for  the  return  of  the  export  duty  of  ten  shillings  per  cent,  ad  valorem, 
still  remaining  due  upon  the  shipment  of  woolens  from  this  country 
to  the  United  States,  I  now  beg  to  state  that,  upon  further  considera- 
tion, being  of  opinion  that,  under  the  ciro-^mstances  of  the  case,  it 
would  be  advisable  to  adjust,  if  possible,  a  'ement  thereof,  without 
having  recourse  to  the  adjudication  of  your  >u>;drd,  I  have  succeeded 
in  effecting  the  same,  and  consequently  beg  to  withdraw  all  such 
claims. 

I  have  the  honor  to  be,  gentlemen,  your  most  obedient  servant, 

CHARLES  BARRY. 


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CONVENTION   WITH   GREAT   BRITAIN. 


311 


The 

lorters, 
3  shape 


815,  to 
ilapsed, 
[ty  was 
per  evL- 
s  of  the 

porters. 
.  Barry, 
vith  the 
e  taken, 
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er  of  the 

filed, 
laimants, 
m,  which 

ere  with- 

,  1855. 
;ee»  Great 


DUTY  ON  COTTON  GOODS,  C.  WIRGMAN,  AGENT. 


By  the  treaty  of  commerce  between  the  United  States  and  Great  Britain,  of  July  3, 1815| 
no  other  or  higher  duties  were  to  be  charged  on  the  imports  from  cither  country  than  on  like 
articles  from  any  other  nation. 

The  act  of  May  33,  1824,  imposed  an  increased  duty  of  five  cents  per  square  yard  on  cotton 
goods,  but  provided  that  it  should  not  take  effect  as  to  goods  from  ports  beyond  the  Cape  of 
Good  Hope  or  Cape  Horn,  until  six  months  afler  it  went  into  operation,  on  goods  imported 
from  Europe  and  other  countries. 

Held  that  the  treaty  required  an  equality  of  tariff  at  the  time  of  entry,  and  that,  so  long 
as  goods  were  received  from  beyond  the  Cape  of  Good  Hope  or  Cape  Horn,  at  the  rate  estab- 
lished by  the  previous  tariff,  like  goods,  from  other  ports  were  entitled  to  be  received  at  the 
same  rate  of  duty. 

In  this  case  it  appeared  that  the  duty  was  paid  without  complaint  many  years  since,  and 
that  the  claim  was  not  brought  to  the  notice  of  the  government,  and  no  demand  was  made 
for  repayment,  until  quite  recently  ;  held  that,  under  such  circumstances,  interest  should  not 
be  allowed. 


The  facts  in  the  case  will  appear  in  the  opinion  delivered. 
Hannen,  agent  and  counsel  for  Great  Britain. 
Thomas,  agent  and  counsel  for  the  United  States. 


!»> 


^1 


last  year, 
;he  parties 
d  valorem, 
lis  country 
considera- 
he  case,  it 
)f,  without 
succeeded 
w  all  such 

lervant, 
5ARRY. 


» 


If 


I 


m 

f:ffi 


II 


312 


ADJUSTMENT    OF  CLAIMS  UNDER  THE 


* 


\ 


The  opinion  of  the  board  was  delivered  by 
Upham,  United  States  Commissioner : 

The  class  of  cases  now  before  us  furnishes  another  instance  of  claims 
for  excess  of  duties  charged  in  violation  of  the  reciprocal  provision 
entered  into  between  the  United  States  and  Great  Britain,  in  the  con- 
vention of  July  3,  1815,  for  the  adoption  of  tariff  rates  with  each 
other  as  favorably  as  those  established  with  any  other  nation. 

By  that  treaty  the  charges  on  goods  imported  into  the  United  States 
or  Great  Britain,  from  either  country,  were  to  be  no  higher  than  on  a 
like  description  of  goods  imported  from  any  other  country. 

Complaint  is  made  of  a  violation  of  this  provision  by  an  act  of  the 
United  States  for  imposing  duties  on  imports,  passed  May  22,  1824. 
By  that  act  an  increase  of  five  cents  per  square  yard  on  cottons  was 
made  to  take  effect  from  June  30,  1824,  with  the  proviso,  "that  it 
should  not  apply  to  or  be  enforced  against  importations  of  goods  from 
ports  or  places  eastward  of  the  Cape  of  Good  Hope,  or  beyond  Cape 
Horn,  before  the  first  of  January  next  ensuing." 

It  does  not  appear  that  attention  was  called  by  British  citizens  to 
the  unequal  operation  of  this  provision,  until  after  complaint  was  made 
as  to  an  act  passed  August  30, 1842,  containing  a  provision  of  a  char- 
acter (similar  to  the  one  under  consideration. 

The  discussion  which  took  place  in  reference  to  that  act  undoubt- 
edly drew  public  attention  to  the  prior  act  regulating  duties  passed 
in  1824.  Long  delay  has  occurred  since  the  grievance  complained  of, 
but  we  have  already  holden,  in  the  case  of  King  &  Gracie,  Barry,  agent, 
relative  to  repayment  of  duty  on  woolen  goods,  that  no  statute  of 
limitations  can  be  pleaded  in  bar  of  claims  arising  under  treaties. 

The  violation  of  the  provisions  of  the  convention  of  1815  by  that 
act  is  much  more  explicit  and  direct  than  that  of  the  act  of  1842,  with 
regard  to  which  we  have  already  expressed  our  opinion.  The  act 
then  provided  merely  that  all  goods  which  were  shipped  from  ports 
beyond  the  Cape  of  Good  Hope,  jpWor  io  the  act  taking  effect,  should 
not  be  subject  to  the  operation  of  the  statute.  In  this  case  it  is  pro- 
vided that  the  act  itself  shoiild  not  take  effect  on  goods  coming  from 
beyond  the  Cape  for  the  term  of  six  months  after  it  had  been  in  opera- 
tion as  to  goods  imported  from  other  countries. 

The  commissioners  regard  this  as  a  clear  and  palpable  discrimina- 


■!^-- 


CONVENTION  WITH   GREAT   BRITAIN. 


313 


slaims 
(vision 
le  con- 
i  each 

States 
m  on  a 


tion  in  favor  of  those  countries  in  violation  of  the  treaty  of  1815,  and 
allow  claims  for  the  return  of  any  excess  of  duties  beyond  those  paid 
by  those  countries  during  the  period  within  which  the  exception 
operated. 

On  the  question  of  interest  which  has  been  presented  to  our  consid- 
eration, it  appears  that  the  duties  were  originally  paid  without  com- 
plaint, and  that  the  claim  has  been  permitted  to  slumber,  until  very 
recently,  without  being  brought  to  the  uotico  of  the  United  States  ^ 
and  we  are  of  opinion  that  no  interest  should  be  allowed. 


of  the 
,  1824. 
ms  was 
that  it 
ids  from 
id  Cape 


# 


.i . 


f  ia 


izens  to 

as  made 

a  char- 


indoubt- 
passed 
lined  of, 
f,  agent, 
latute  of 
ties, 
by  that 
J42,  with 
The  act 
am  ports 
should 
it  is  pro- 
ing  from 
in  opera- 

Bcrimina- 


^ 


^.-^ 


ft- 


m 


S14 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


g 
n 

0 


"-^ 


ALEXANDER  McLEOD. 


h 
fr 


Where  a  citizen  of  Canada  was  arrested  in  the  State  of  New 
York,  for  a  criminal  oflfence  against  the  laws  of  the  State,  arising  from 
his  being  engaged  in  the  destruction  of  the  steamer  Caroline,  in  New 
York,  with  a  party  from  Canada,  during  an  insurrection  in  that  pro- 
vince, and  Great  Britain  demanded  his  release  on  the  ground  that  the 
acts  complained  of  were  done  by  the  orders  of  that  government,  and 
that  the  nation  was  responsible  and  not  the  individual ;  and  where 
the  diflSculties  arising  from  these  causes  were  afterwards  adjusted  be- 
tween the  two  governments,  held  that  such  adjustment  barred  all 
claims  of  citizens  of  either  country  against  the  other  for  individual 
damage  sustained^  and  that  such  cases  were  not  within  the  provisions 
for  the  settlement  "  of  outstanding  claims,"  under  the  convention  of 
February  8,  1853. 

Where  a  citizen  of  another  government  was  arrested  in  this  country 
for  a  criminal  oifence,  and  claimed  his  discharge  on  the  ground  that 
the  acts  complained  of  were  done  under  the  authority  of  his  govern- 
ment, it  does  not  necessarily  entitle  him  to  a  release.  Time  must  be 
had  for  the  action  of  the  proper  tribunals  on  such  plea,  and  the  ulti- 
mate decision  of  a  court  in  the  last  resort^  where  the  same  becomes 
necessary. 

Neither  does  any  claim  for  damage  arise  where  the  means  provided 
by  law  for  the  adjustment  of  such  questions  are  less  speedy  than  would 
be  desirable,  and  may  require  amendment,  or  error  has  arisen,  in 
courts  of  subordinate  jurisdiction,  from  which  appeal  might  have  been 
taken  or  correction  had. 

Alexander  McLeod,  a  British  subject  resident  in  Canada,  was  ar- 
rested in  Lewistown,  in  the  "State  of  New  York,  in  November,  1840, 
on  a  charge  of  being  concerned  in  the  seizure  and  destruction  of  the 
steamer  Caroline,  attended  with  loss  of  life,  in  the  State  of  New 
York,  on  the  29th  of  December,  1837. 


cc 
tv 
fa 
th 


"Wr- 


OONVENTION   WITH  GREAT  BRITAIN. 


315 


During  the  pendency  of  the  prosecution,  Great  Britain  notified  the 
government  of  the  United  States  that  the  seizure  of  the  Caroline  was 
made  under  the  authority  of  Great  Britain,  and  claimed  the  discharge 
of  McLeod  on  that  ground. 

He  was  not  discharged,  but  was  tried  and  acquitted,  and  now  brings 
his  claim  before  this  commission  for  damages  and  expenses  arising 
from  his  detention  and  trial. 

The  facts  in  the  case  are  more  fully  set  forth  in  the  opinion  of  the 
commissioner,  together  with  the  correspondence  on  this  subject  be- 
tween the  two  governments  relating  to  the  settlement  of  the  same,  so 
far  as  it  has  a  bearing  on  the  jurisdiction  of  the  commissioners  over 
the  claim. 

The  case  was  fully  argued.     On  behalf  of  the  claimant, 

McLeod  appeared  per  se,  and  by 

Hannen,  agent  and  counsel  for  Great  Britain. 

Thomas,  agent  and  counsel  for  the  United  States. 


* 


^ 
■^   ^ 


m 


tr\f 


«?..      i 


.  I  -  ..-^- J 


316 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


# 


Hornby,  Commissioner  of  Great  Britain : 

Considered  the  adjustment  made  between  the  two  governments  as 
a  settlement  merely  of  the  international  points  of  controversy  arising 
in  the  case,  and  that  any  private  claims  of  damage  on  the  part  of 
McLeod  remained  an  open  question  among  outstanding  claims  existing 
at  the  date  of  the  convention. 

He  was  of  opinion  that  McLeod  was  entitled  to  immediate  release 
on  the  assumption  by  the  British  government  of  his  acts,  and  the 
communication  of  proper  notice  of  this  fact  to  the  American  authori- 
ties. It  then  became  a  national  controversy  and  ought  not  to  have 
been  further  prosecuted  against  an  individual. 

He  held  further,  that  the  detention  was  longer  than  was  necessary 
in  any  eveiit,  and  was  rendered  unduly  severe  on  account  of  public 
excitement,  which  it  was  the  duty  of  the  government  to  have  re- 
pressed, and  that  from  this  cause  the  claimant  was  exposed  to  hard- 
ship and  much  expense,  for  which  he  was  justly  entitled  to 
compensation.* 


*  In  this  case,  and  some  others  which  were  disposed  of  at  a  late  day  during  the  sitting  of 
the  convention,  a  full  report  of  the  decisions  of  the  commissioner  was  not  drawn  up  at  the 
time,  but  was  to  have  been  subsequently  forwarded,  and  placed  on  file.  It  is  much  to  be 
regretted  that  they  have  not  yet  been  received,  and  therefore  ..  brief  note  only  of  these  opin- 
ions can  be  furnished. 


# 


mMi 


-St-* 


CONVENTION   WITH  GREAT   BRITAIN. 


817 


8  as 
3ing 
t  of 
ting 

lease 
Ithe 
hori- 
have 

ssary 
(ublic 
e  re- 
hard- 
ed   to 


itting  of 
p  at  the 
ich  to  be 
tse  opin- 


Upham,  United  States  Commissioner  : 

The  claim  of  Alexander  McLeod,  which  has  been  presented  for  our 
consideration,  renders  it  necessary  to  recite  briefly  the  details  of  bor- 
der collisions  between  the  United  States  and  the  Canadas,  which 
occurred  some  seventeen  years  since,  and  which  are  set  forth  in  the 
documents  presented  in  this  case. 

On  the  29th  of  December,  1837,  the  steamer  Caroline,  belonging  to 
a  citizen  of  the  United  States,  was  lying  in  the  Niagara  river,  along 
side  the  wharf  at  Schlosser,  in  the  State  of  New  York,  having  on 
board  a  number  of  American  citizens. 

A  civil  commotion  at  the  time  prevailed  in  upper  Canada^  and  it 
was  alleged  that  the  Caroline  had  been  used  to  carry  arms,  and  muni- 
tions of  war,  from  the  shores  of  the  State  of  New  York  to  an  insurrec- 
tionary party  on  Navy  Island,  then  in  arms  against  the  government 
of  that  province. 

While  the  Caroline  was  thus  within  the  jurisdiction  of  the  State  of 
New  York,  a  party  of  her  Britannic  Majesty's  subjects  left  the  shore 
of  Canada,  came  within  the  limits  of  the  State  of  New  York,  seized 
the  Caroline,  and  destroyed  her.  During  the  collision,  arising  from 
the  seizure,  Amos  Durfee,  a  citizen  of  the  United  States,  was  killed, 
and  was  found  dead  on  the  wharf ;  and  it  was  supposed  the  lives  of 
other  citizens  were  lost  on  board  the  steamer. 

Complaint  was  early  made  to  Great  Britain  of  the  public  wrong 
done  to  the  United  States  by  this  invasion  and  violation  of  her  rights 
of  territory,  and  the  injuries  there  committed,  but  no  satisfaction  or 
apology  had  been  made  for  such  wrong  for  a  period  of  three  years 
after  the  event,  when,  in  November,  1840,  Alexander  McLeod,  who 
was  a  citizen  of  Great  Britain  and  a  resident  of  Upper  Canada,  came 
to  Lewiston,  in  the  State  of  New  York,  and  was  there  arrested  on  the 
charge  of  having  been  concerned  in  the  seizure  of  the  steamer  Caroline, 
and  the  wrongs  connected  with  it.  On  examination,  he  was  com- 
mitted to  the  jail  in  Niagara  county;  and  in  February,  1841,  the 
grand  jury  of  that  county  found  a  bill  of  indictment  against  him  for 
the  murder  of  Durfee.  The  case  was  removed  to  the  supreme  court 
for  trial,  and  was  afterwards  transferred  to  another  county  to  avoid 
the  local  excitement  existing  on  the  Niagara  border. 

The  arrest  of  McLeod  revived  at  once  the  consideration  of  the  whole 


m 

Urn 

.Mf 


>&!.- 


'  i: 


318 


ADJUSTMENT   OF  CLAIMS   UNDER   THE 


subject  of  the  border  difficulties.  In  March,  1841,  Mr.  Fox,  then 
minister  of  Great  Britain  to  the  United  States,  demanded,  formally, 
in  the  name  of  the  British  government,  the  immediate  release  of 
McLeod,  and  set  forth  the  grounds  upon  which  this  demand  was  made, 
alleging  "that  the  transaction,  on  account  of  which  McLeod  was 
arrested,  was  a  transaction  of  a  public  character,  planned  and  executed 
by  persons  duly  empowered  by  hor  Majesty's  colonial  authorities  to 
take  any  steps  and  to  do  any  acts  which  might  be  necessary  for  the 
defence  of  her  Majesty's  subjects,  ai^d  that  they  were  not  personally 
and  individually  answerable  to  the  laws  and  tribunals  of  any  foreign 
country."  It  was  thus  contended  that  all  liability  of  McLeod  for  the 
acts  charged  against  him  was  merged  in  the  national  character  given 
to  the  *^ransaction  by  the  British  government. 

Mr,  Webster,  in  reply,  on  the  .Uth  of  April,  1841,  stated  ''that  the 
communication  of  the  act  being  formally  made  that  the  destruction  of 
the  Caroline  was  an  act  of  public  force  by  the  British  authorities,  tlie 
case  had  assumed  a  decided  aspect,"  and  measures  would  be  taken 
accordingly. 

The  United  States  government  accepted  at  once  the  issue  tendered 
in  this  form,  and  insisted  on  satisfaction  or  apology  for  tlie  violation 
of  its  rights  of  territory  in  the  seizure  of  the  Caroline  ;  at  the  same 
time  the  government  took  immediate  measures  to  communicate,  in  a 
proper  manner  to  the  judicial  authorities,  the  evidence  of  the  inter- 
national defence  thus  set  up  by  the  British  government,  that  it  might 
avail  to  the  benefit  of  McLeod. 

The  counsel  for  McLeod  sued  out  a  writ  of  habeas  corpus,  returnable 
before  the  supreme  court  of  Neiv  York,  and  claimed  his  discharge  on 
the  ground  thus  interposed.  It  was  holden  by  the  court,  however, 
as  is  stated  by  Mr.  Webster  in  his  letter  to  Lord  Ashburton  of  August 
6,  1842,  "  that,  on  this  application,  embarrassed  as  it  would  appear 
by  technical  difficulties,  McLeod  could  not  be  released."  Further 
hearing  was  proposed  on  this  subject,  by  a  transfer  of  the  case  to  tlie 
United  States  court  for  the  determination  of  this  (jiiestion,  but  McLeod 
objected  to  the  delay  necessarily  attendant  on  such  a  proceeding,  and 
requested,  in  writing,  a  trial  by  jury  ;  a  copy  of  which  request  was 
communicated  to  the  British  government.  Shortly  .afterwards  the 
discharge  of  McLeod  was  effected  by  the  decision  of  a  jury,  and  "the 
further  prosecution  of  the  legal  question,"'  as  Mr.  Webster  says, 
"  was  then  rendered  unnecessary.'" 


STd 


ch 
and 

goj 
tiol 

su^ 
prJ 
be{ 


CONVENTION   WITH    OREAT   BRITAIN. 


819 


Had  tho  verdict  of  the  jury  been  otherwise,  McLeod  had  reserved 
to  himself  the  right  to  a  reconsideration  of  the  decision  of  tho 
supreme  court  of  New  York,  on  the  international  defence  interposed 
by  him. 

Mr.  Spencer,  the  attorney  of  McLeod,  states  in  his  argument  before 
tho  jury:  *•  I  have  taken  the  precaution  to  secure  the  right  which  will 
enable  me  to  review  the  decision  of  the  supreme  court  elsewhere,  so 
that,  in  the  event  of  McLeod 's  conviction,  if  the  supreme  court  have 
been  mistaken,  if  that  decision  should  not  be  in  accordance  with  the 
law  of  the  land,  it  may  be  reversed,  and  that  established  which  I 
believe  to  be  the  law  of  the  land,  namely:  that  where  there  was  such 
a  war  being  carried  on  between  the  British  government  and  those 
who  waged  it  on  our  side  of  the  waters,  the  British  government  might 
properly  exert  its  powers  to  put  down  that  war,  and  those  who  acted 
in  obedience  to  the  orders  of  that  government  discharged  their  duty 
as  faithful  subjects  and  citizens,  and  are.  not  murderers. — (Gould's 
trial  of  McLeod,  2i.  1^\.) 

Such  is  a  brief  recital  of  the  facts  relative  to  tliis  matter,  and  of  the 
respective  issues  raised  by  the  two  governments  on  the  subject. 

The  difficulties  thus  existing  were  early  made  the  subject  of  further 
corresponuence,  and  a  final  adjustment  in  regard  to  them  was  had 
between  the  governments.  It  becomes  necessary,  then,  to  examine  the 
character  of  this  adjustment,  and  to  determine  the  effect  of  such  set- 
tlement on  the  claim  before  us. 

Two  questions  arise  in  the  case : 

I.  Whether  the  settlement  made  by  the  governments  precludes  our 
jurisdiction  over  the  claim  now  presented. 

n.  Whether,  independently  of  such  exception,  the  facts  show  a 
ground  of  claim  against  the  United  States. 

The  convention  provides  that  we  are  to  pass  upon  the  unsettled 
claims  of  citizens  or  subjects  of  either  government  against  the  other, 
and  we  are  to  pass  "  only  on  such  claims  as  shall  be  jircsentcd  by  the 
governments,"  and  are  to  be  confined  "to  such  evidence  and  informa- 
tion as  shall  be  furnished  by  or  on  their  behalf."  No  claims  can  be 
sustained  before  us  except  those  which  tlie  governments  can  rightly 
prefer  for  our  consideration.  With  matters  settled  and  adjusted 
between  them,  we  have  nothing  to  do. 

A  settlement  by  the  governments  of  the  ground  of  international 


f'  i 


320 


ADJUSTMBNT  OF  CLAIMS  UNDER  THE 


controversy  between  tlieiu,  i}Min  facto  settles  any  claims  of  individuals 
arising  under  such  controversies  against  the  government  of  the  other 
country,  unless  they  are  8i)ecially  excepted  ;  as  each  government  by 
flo  doing  assumeo  as  principal,  the  adjustment  of  the  claims  of  its 
own  citizens,  and  becomes,  itself,  solely  responsible  for  them. 

The  controversies  to  which  1  Inivc  referred  consisted  of  two  grounds 
of  complaint:  the  delay  in  the  liberation  of  McLeod,  on  the  one  hand ; 
and  the  violation  of  the  American  rights  of  territory  in  the  seizure  of 
the  Caroline,  on  the  other.  These  questions  passed  under  the  full 
consideration  and  revision  of  the  two  governments,  in  1842,  repre- 
sented by  Lord  Ashburton,  ambassador  extraordinary  and  minister 
plenipotentiary,  on  the  part  of  Great  Britain,  and  Mr.  Webster,  then 
Secretary  of  State,  on  the  part  of  the  United  States. 

The  result  of  their  conference  I  regard  as  a  full  and  final  settle- 
ment tf  these  matters  in  controversy.  In  the  closing  letter  of  Lord 
Ashburton  on  this  subject,  he  says:  "After  looking  through  the 
voluminous  correspondence  concerning  these  transactions,"  (that  is, 
the  difficulty  with  McLeod,)  "I  am  bound  to  admit  there  appears  no 
indisposition  with  any  of  the  authorities  of  the  federal  government, 
under  its  several  administrations,  to  do  justice  in  this  respect  in  as  far 
as  their  means  and  powers  would  allow." 

He  makes  no  complaint  of  want  of  diligence  or  promptness  on  the 
part  of  the  United  States  government,  but  says:  "Owing  to  a  conflict 
of  laws,  difficulties  have  intervened,  much  to  the  regret  of  the  Ameri- 
can authorities,  in  giving  practical  effect  to  the  principles  avowed  by 
them;  and  for  these  difficulties  some  remedy  has  been  by  all  desired." 
He  then  says:  "I  trust  you  will  excuse  my  addressing  to  you  the 
inquiry,  whether  the  government  of  the  United  States  is  now  in  a 
condition  to  secure,  in  effijct  and  in  practice,  the  principle,  which 
has  never  been  denied  in  argument,  that  individuals,  acting  under 
legitimate  authority,  are  not  personally  responsible  for  executing  the 
orders  of  their  government?  That  the  power,  when  it  exists,  will  be 
used  on  every  fit  occasion,  I  am  well  assured." 

Lord  Ashburton  thus  rested  his  claim,  and  in  the  same  letter  and 
spirit  tendered  an  apology  for  tlie  violation  of  the  United  States  right 
of  territory  in  the  seizure  of  the  Caroline,  "which  transactions,"  he 
«ays,  "are  connected  with  each  other." 

His  lordship  then  does  not  wait  for  the  reply  of  Mr.  Webster  as  to 


CONVENTION   WITH   GREAT   BRITAIN. 


321 


luals 
L>ther 
it  by 
of  its 

ounds 
hand ; 
iure  of 
le  full 
repre- 
linister 
r,  then 

settle- 
[)f  Lord 
igh  the 
that  is, 
pears  no 
rnment, 
in  as  far 


iS  on 


the 


conflict 
Ameri- 
wed  by 
esired.'' 
you  the 
now  in  a 
,  which 
"•  under 
lit  in  g  the 
s,  will  he 

otter  and 
ates  right 
ions,"  he 

)ster  as  to 


the  adoption  of  a  provision  for  more  prompt  niomis  of  rcdrc««,  in  cascR 
like  McLood's,  but,  reposing  eouKdence  in  advance  in  the  proper 
action  of  the  American  government,  closes  bis  h'tti-r  by  saying,  in 
reference  to  both  tlicso  stibjects  of  controversy:  "  I  trust,  sir,  I  may 
now  bo  permitted  to  liope  that  all  feelings  of  resentment  and  ill  will 
resulting  from  these  truly  unfortunate  events  may  hv  hvrud  in  oUivirm, 
and  that  they  may  be  succeeded  by  those  of  harmony  and  fricndNliip, 
which  it  is  certainly  the  interest,  and  1  also  believe  the  inclination, 
of  all  to  promote.'" 

Mr.  Webster,  in  his  reply  to  the  subjects  of  this  letter,  adverting 
to  the  matter  of  McLeod,  stated  tlie  reasons  why  delay  had  occurred 
in  his  case,  and  that  "  in  regular  constitutional  governmenta  i)erson8. 
arrested  on  charges  of  high  crimes  can  only  be  disohorged  by  some 
judicial  proceeding.  It  is  so  in  Enghkivl.  It  is  so  in  the  colonies  and 
provinces  of  England."  He  further  says  :  "  It  was  a  subject  of  regret 
that  McLeod's  release  had  been  so  long  deferred;"  and,  in  answer  to 
the  question  i)roposed  to  him  by  Lord  Ashburton,  stated  "  it  was  for 
the  Congress  of  the  United  States,  whose  attention  has  been  called  to 
the  subject,  to  say  what  further  provision  ought  to  be  made  to  expedite 
proceedings  in  such  cases,  and  that  the  government  of  the  United 
States  holds  itself  not  only  fully  disposed,  but  fully  competent,  to 
carry  into  i)ractice  every  princi[)le  which  it  avows  or  acknowledges, 
and  to  fulfil  exery  duty  and  obligation  which  it  owes  to  foreign  gov- 
ernments, their  citizens  or  subjects." 

During  the  same  month,  on  the  2yth  of  August,  1842,  Congress 
passed  a  law  by  which  immediate  transfer  of  jurisdiction  might  be 
made  to  the  courts  of  the  United  States  of  all  cases  where  any  persons, 
citizens,  or  subjects  of  a  foreign  State,  and  domiciled  therein,  should 
be  held  in  custody  on  account  of  any  act  done  under  the  commission, 
order,  or  sanction  of  any  foreign  State  or  sovereignty. 

Tlie  delay,  therefore,  attendant  on  the  previous  means  of  removal  of 
such  cases  to  the  jurisdiction  of  the  United  States  courts  for  tlieir  de- 
cision, which  was  the  only  ground  of  complaint,  was  thus  provided 
against,  and  every  suggestion  which  bad  been  mailc  on  the  subject 
was  thus  fully  met  and  answered. 

In  reference  to  tlie  other  grounds  of  complaint — the  violation  of  the 
rights  of  territory  of  the  United  States  in  the  seizure  of  the  Caroline — 
Mr.  Webster,  in  reply  to  the  declarations  of  Lord  Ashburton,  thug 

21 


'Is 


322 


ADJUSTMENT  OF   CLAIMS  UNDER  THE 


I'      I  'I 


I 


■! 


disposes  of  the  matter  in  the  same  letter :  *'  Seeing,  he  says,  that  the 
transaction  is  not  recent ;  seeing  that  your  lordship),  in  the  name  of 
your  government,  solemnly  declares  that  no  slight  or  disrespect  was 
intended  to  the  sovereign  authority  of  the  United  States  ;  seeing  it  is 
acknowledged  that,  whether  justifiable  or  not,  there  was  yet  a  viola- 
tion of  the  territory  of  the  United  States,  and  that  you  are  instructed 
to  say  that  your  government  considers  that  as  u  most  serious  occur- 
rence ;  seeing,  finally,  that  it  is  now  admitted  that  an  explanation  and 
apology  for  this  violation  was  due  at  the  time,  the  President  is  con- 
sent to  receive  these  acknowledgments  and  assurances  in  the  concil- 
atory  spirit  which  marks  your  lordship's  letter,  and  will  make  this 
subject,  as  a  complaint  of  violation  of  territory,  the  topic  of  no  further 
discussion  between  the  two  governments." 

These  subjects  of  difficulty  and  controversy  between  the  two  coun- 
tries were  thus  fully  and  finally  adjusted,  so  that  the  able  and  patri- 
otic statesmen  by  whom  this  settlement  was  effected  trusted,  in  the 
words  of  Lord  Ashburton,  "  that  these  truly  unfortunate  events  might 
thenceforth  he  buried  in  oblivion." 

The  question  then  arises,  Avhat  was  the  effect  of  this  settlement  on 
the  private  claims  of  any  citizen  of  either  country  against  the  other  ? 
It  is  quite  clear  that  this  settlement  was  not  made,  leaving  the  private 
wrongs  of  the  owners  of  tlie  Caroline  to  be  pressed  against  the  British 
government  for  adjustment  by  an  American  agent ;  nor  were  the  claims 
of  McLeod  to  indemnity  for  injuries  he  may  have  received  for  supposed 
participation  in  these  transactions  to  be  set  up  through  an  agent  of 
the  British  government  against  the  United  States. 

Such  a  construction  of  the  adjustment  made  between  Mr.  Webster 
and  Lord  Ashburton  would  be  a  violation  of  the  whole  tenor  of  the 
correspondence  between  the  two  governments,  an<?  of  the  international 
ground  on  which  they  both  concurred  in,  placing  the  collisions  be- 
tween the  two  countries.  In  my  view  the  entire  controversy,  with  all 
its  incidents,  was  then  ended ;  and  if  the  citizens  of  either  govern- 
ment had  grievances  to  complain  of,  they  could  have  redress  only  on 
their  own  governments,  who  had  acted  as  their  principals,  and  taken 
the  responsibility  of  making  the  wliole  matter  an  international  affair, 
and  had  adjusted  it  on  this  basis. 

I  regret  to  say  that  my  associate  does  not  view  the  matter  in  this 
light.     He  does  not  regard  tlie  grounds  of  complaint  between  the  two 


the) 
wit] 
not 


CONVENTION  WITH   GREAT  BRITAIN. 


323 


the 
e  of 
was 
it  is 
iola- 
acted 
»ccur- 
nand 
i  con- 
!oncil- 
:e  tbis 
"urther 

>  coun- 
L  patri- 
,  in  the 
8  might 

meut  on 
3  other? 
3  private 
e  British 
le  claims 
supposed 
agent  of 

Wohster 
lor  of  the 

rnational 
Isions  he- 
with  all 
or  govern- 

s  only  oii 
ami  taken 
inal  affair, 

ttev  in  this 
en  the  two 


countries  as  settled,  or,  if  so,  he  holds  that  the  settlement  does  not  har 
the  prosecution  of  the  individual  claim  of  McLeod  for  redress  against 
the  United  States. 

He  is  further  of  opinion  the  merits  of  McLeod's  claim  have  been 
sustained,  and  that  he  is  entitled  to  compensation.  On  this,  which 
was  the  second  point  raised  for  discussion,  1  have  also  the  misfortune 
to  disagree  with  my  colleague. 

McLcod,  under  similar  circumstances  in  Great  Britain,  would  have 
heen  liable  to  both  civil  and  criminal  process  on  complaint  made  by 
any  citizen.  In  a  civil  process  neither  government  could  interfere 
further  than  to  aid  in  presenting  the  international  ground  of  defence 
for  judicial  consideration  and  action.  If  the  defence  interposed  was 
sound,  his  discharge  by  the  courts  would  necessarily  follow,  with  all 
the  incidents  usually  attending  the  recovering  party  in  a  court  of  law. 

McLeod  was  not  entitled  to  immediate  discharge  from  criminal  pro- 
cess, because  Great  Britain  had  avowed  his  act.  Her  avowal  of  a 
deed  done,  as  her  act  does  not  necessarily  make  it  an  international  de- 
fence. 8he  might  avow  the  acts  of  a  private  incendiary  or  murder^ 
but  it  would  not  exculpate  him  from  trial  and  condemnation.  It 
is  for  the  government  to  determine  through  its  proper  tribunals 
whether  the  act  done  is  of  that  character,  and  has  been  committed 
under  such  circumstances,  as,  on  principles  of  international  laio,  ought 
rightly  to  shield  the  individual  from  guilt.  The  judicial  authority, 
when  the  case  is  rightly  before  it,  or  the  executive  power,  when  it  is 
fully  within  its  control,  is  to  determine  this  question  by  itself,  and  is 
to  take  time  to  determine  it  properly.  This  is  the  only  course  to  be 
taken  on  a  demand  for  the  release  of  an  individual  arrested  as  McLeod 
was  for  a  capital  offence. 

The  United  States  government  adopted  this  cause  at  once,  It  did 
not  admit  the  justification  set  up  by  Great  Britain  for  her  acts,  and 
took  issue  with  her  upon  it ;  but,  at  the  same  time,  it  put  in  action 
every  agency  the  nature  of  the  case  admitted  of  to  interposo  this 
defence  for  the  benetit  of  i\IcLeod,  at  the  court  before  which  ho  was 
arraigned. 

This  is  fully  conceded  by  Lord  Ashburton.  All  rightful  demands, 
tlierefore,  either  of  the  British  government  or  McLeod,  were  complied 
with.  The  proceeding  against  him  originated  before  a  local  tribunal 
not  of  the  hii^hest  resort  in  matters  of  international  law.     It  was  suli- 


i! 


I    fl 


!    1 


i''U 


■Ml 


324 


ADJUSTMENt  OF  CLAIMS  UNDER   THE 


ject  to  control,  however,  both  before  and  after  trial,  by  a  revision  of 
any  decision  it  might  erroneously  make  on  such  a  point,  by  a  transfer 
to  courts  of  the  last  resort.  Delays  might  arise  from  this  cause,  hut 
neither  Great  Britain  nor  McLeod  had  any  proper  ground  of  complaint 
against  the  United  States  arising  from  the  arrangement  of  our  judicial 
tribunals.  Any  American  litigant  in  British  courts  might  equally 
well  make  it  a  ground  of  complaint,  that  the  cost  or  delay  of  those 
tribunals  operated  in  any  given  case  as  a  denial  of  justice,  and  claim 
compensation  for  it  as  an  international  wrong.  No  such  principle  of 
international  law  exists. 

Lord  Ashburton  stated  that  this  delay  was  a  matter  of  mutual 
regret,  and  expressed  the  hope  that  provision  might  be  made  to  obviate 
its  occurrence  in  the  case  of  others  engaged  in  the  same  transaction 
who  were  liable  to  be  arrested  at  any  time  on  their  crossing  the  border. 
This  suggestion  was  promptly  met,  and  a  remedy  was  provided  for  the 
immediate  transfer  of  these  cases  to  a  court  of  the  last  resort,  where 
such  defence  might  be  more  readily  made  available.  It  is  clear,  there- 
fore, that  there  is  no  legal  or  equitable  international  claim  or  grounds 
of  complaint,  except  such  complaint  as  must  always  exist  in  all  free 
constitutional  governments  that  persons  must  be  holden  amenable  to 
process  of  law,  duly  and  legally  instituted,  until  such  time  as  proper 
adjudication  can  be  on  any  plea  interposed  for  their  defence. 

Considerable  stress  in  this  case  has  been  laid  on  a  statement  of  Mr. 
Webster,  in  a  speech  in  the  United  States  Senate,  that  the  owners  of 
the  steamer  Caroline  had  violated  the  laws  of  the  United  States,  and 
were  not  entitled  to  compensation.  From  this  admission  it  Itas  been 
argued  that  no  person  could  be  held  liable  for  the  destruction  of  the 
steamer  Caroline,  and  that  there  was  no  ground  of  complaint  for  the 
invasion  of  the  United  States  territorj'  to  eftect  its  destruction.  But 
neither  of  these  results  follow  from  such  an  admission. 

If  it  be  admitted  that  the  Caroline  was  aiding  and  abetting  the  re- 
bellion on  Navy  Island,  in  violation  of  law,  it  does  not  follow  that  it 
was  justifiable  to  seize  and  burn  her  in  the  United  States  territory, 
and  take  the  life  of  a  citiztMi  who  was  casually  present  on  the  wharf. 
It  is  not  a  question  of  property,  but  of  sovereignty.  Such  an  acfc 
might  at  the  time  have  caused  the  loss  of  many  lives,  and  desolated 
the  entire  frontier.  It  was,  therefore,  exceedingly  hazardous  and 
dangerous  in  its  consequences,  and  was  an  act  that,  in  the  words  of 


no 
lo^ 
be 
tie 
\n< 
thJ 


I 


CONVENTION   WITH   GREAT   BRITAIN. 


825 


n  of 

isfer 

,  but 

laint 

licial 

ually 

those 

claim 

pie  of 

lutiial 
bviate 
laction 
)order. 
for  the 
wher» 
,  there- 
jrounds 
all  free 
lable  to 
J  proper 

t  of  Mr. 
svners  of 
,tea,  and 
as  been 
m  of  the 
it  for  the 
pn.     But 

rj  the  re- 
»\v  that  it 
territory, 
lie  wharf. 
3h  an  acii 
desolated 
'dous  and 
e  words  of 


Mr.  Webster,  and  of  every  constitutional  writer,  tirould  be  justifiable 
only  in  case  of  self-defence,  impelled  by  absolute  necessity — "a  neces- 
sity instant  and  overwhelming,  leaving  no  choice  of  means  or  moment 
for  deliberation." 

The  justification  never  came  up  to  anything  like  this.  Indeed,  it 
was  attempted  to  be  palliated  on  other  and  different  grounds.  It  was 
said,  when  the  expedition  started,  it  was  supposed  the  Caroline  was  at 
Navy  Island,  and  that  it  was  an  after-thought  and  sudden  raovelnent 
merely  that  induced  them  to  proceed  across  the  river,  and  seize  her 
there,  and  was  not  a  deliberately  planned  invasion  of  the  United  States 
territory.  .Some  of  the  aggravating  circumstances  attending  the  burn- 
ing of  the  Caroline,  and  sending  her  adrift  over  the  falls  were 
attempted  to  be  explained  away  by  saying  that  they  could  not  take  her 
across  the  river.  It  was  also  said  that  Durfee's  life  was  taken  by  a 
chance  shot  from  some  one  on  the  wharf. 

•  These  allegations  and  mitigating  circumstances  were  pleaded  in  ex- 
tenuation of  the  wrong  done.  They  furnished  no  justification  of  the 
acf.  (Tref'>t  excitement  arose  from  it,  enough  to  show  that  if  it  had 
beer  .'  'lily  more  calamitous  its  consequences  might  have  been  truly 
deplt -a^ '  ■  It  was  fortunate  that  it  was  attended  with  no  worse 
results. 

All  these  matters  alleged  were  duly  considered.  The  statesmen  of 
both  countries  regarded  the  outbreak  and  collision  as  sudden  and  un- 
premeditated, while  neither  party  really  designed  wrong  to  the  other  j 
and  looking  on  the  occurrences  from  this  high  and  honorable  inter- 
national view,  the  whole  matter  was  fully  adjusted  by  such  action  on 
the  part  of  the  United  States  government,  in  reference  to  McLeod,  as  I 
have  named,  which  was  all  the  case  admitted  of;  and  by  such  apology 
on  the  part  of  Great  Britain,  in  reference  to  the  violation  of  the  United 
States  territory  as,  in  the  words  of  Mr.  Webster,  "  a  high  and  honor- 
able nation  only  could  give,  and  a  high  and  honorable  nation  receive." 

For  these  reasons,  I  am  of  opinion  that  neither  on  its  merits, 
nor  as  an  open  ground  of  controversy,  can  the  claim  before  us  be  al- 
lowed. It  appears  from  the  testimony  in  the  case,  that  McLeod  had 
been  sheriff  for  some  years  in  the  county  adjoining  the  Niagara  fron- 
tier, and  took  an  active  and  efficient  part  as  a  civil  officer  in  suppress- 
ing the  rising  within  his  district.  McLeod  attributes  to  these  efforts 
the  erroneous  impression  that  he  was  engaged  in  the  seizure  of  the 


I! 


Hit 

riil.    I 

hi;; 

in 


326 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


liii 


Caroline,  or  it  may  have  caused,  as  he  thinks,  a  conspiracy  to  persecute 
and  oppress  him,  instigated  by  persons  concerned  in  the  rebellion, 
Avho  had  fled  to  the  United  States.  If  this  be  so,  it  might,  perhaps, 
form  u  consideration  for  some  allowance  to  him  by  his  own  country. 
Beyond  this,  there  is  no  ground  on  which  he  may  claim  damage  of 
any  government,  other  than  the  general  claim  of  any  citizen  who  may 
have  suffered  under  erroneous  prosecution. 

It»may  excite  some  surprise  that  this  case  should  be  submitted  to  us 
by  the  British  government.  It  doubtless  arises  froEQ  the  fact  that  the 
agents  of  the  governments  have  adopted  the  course  to  present  all 
claims  found  on  file  since  the  peace  of  1814,  and  this  has  been  pre- 
sented through  inadvertence  and  should  not  be  persisted  in.  I  cannot 
believe  that  his  lordship,  the  secretary  for  foreign  affairs,  or  the  min- 
istry with  which  he  is  associated,  can  have  forgotten  the  final  adjust- 
ment of  this  controversy  many  years  since,  or  that  they  can  give  a 
construction  to  the  correspondence  on  this  subject  different  from  wha* 
I  have  affixed  to  it.  For  this  reason,  I  especially  regret  that  it  has 
become  the  ground  of  a  difference  of  opinion  before  this  commission, 
and  thus  assumes  the  character  of  a  claim  presented  in  violation  of 
this  adjustment,-  and  of  the  good  faith  the  people  of  both  countries 
have  affixed  to  the  acts  of  eminent  negotiators  now  passed  away. 


Note, — The  opinion  of  Mr.  Hornby,  tlie  British  commissioner,  in  this  and  some  other 
Cases,  delivered  near  the  close  of  the  commission,  was  to  have  been  forwarded  to  be  placed 
on  file.    It  is  much  to  be  regretted  that  they  have  not  been  received. 


-"jir^i 


CONVENTION    WITH   GREAT   BRITAIN. 


327 


secute 
illion, 
rhaps, 
antry. 
lage  of 
lo  may 

i  to  us 
tiat  the 
ent  all 
icn  pre- 

cannot 
he  min- 
.  adjust- 

give  a 
)m  wha* 
it  it  lias 
mission, 
lation  of 
jountries 

^rav. 


some  other 
lo  be  placed 


Bates,  Umpire 


The  commissioners  under  the  convention  having  been  unable  to 
agree  upon  the  decision  to  be  given  with  reference  to  the  claim  of 
Alexander  McLeod,  of  JJpper  Canada,  against  the  government  of  the 
United  States,  I  have  carefully  examined  and  considered  the  papers 
and  evidence  produced  on  the  hearing  of  the  said  claim. 

This  case  aro8e,out  of  the  burning  and  destruction  of  the  American 
steamboat  Caroline,  at  Schlosser,  in  the  State  of  New  York,  on  the 
Niagara  river,  by  an  armed  force  from  Canada,  in  the  year  1837,  for 
which  the  British  government  appears  to  have  delayed  formally  an- 
swering the  claims  of  the  United  States,  until  1840,  when  the  claim- 
ant was  arrested  by  the  authorities  of  the  State  of  New  York  on  a 
charge  of  murder  and  arson,  as  having  been  one  of  the  party  which 
destroyed  the  "Caroline."  The  British  government  then  assumed  the 
responsibility  of  the  act,  as  done  by  order  of  the  government  authorities 
in  Canada,  and  pleaded  justification  on  the  ground  of  urgent  necessity. 

From  this  time  the  case  of  the  claimant  became  a  political  question 
between  the  two  governments,  and  the  United  States  used  every  means 
in  their  power  to  insure  the  safety  of  the  claimant,  and  to  procure  his 
discharge,  which  was  effected  after  considerable  delay. 

It  appears  by  the  diplomatic  correspondence  that  the  affair  of  the 
"  Caroline,"  the  death  of  Durfee,  who  was  killed  in  the  affray,  and 
the  arrest  of  the  claimant,  Avere  all  amicably  and  finally  settled  by 
the  diplomatic  agents  of  the  two  governments  in  1841  and  1842. 

The  question,  in  my  judgment,  having  been  so  settled,  ought  not 
now  to  be  brought  before  this  commission  as  a  private  claim.  I  there- 
fore reject  it. 


■I! 


ail 


r 


M 


328 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


GREAT  WESTERN  STEAMSHIP  C'OMPANY. 


Where  coal  wail  imported  and  stored,  and  was  aflerwards  conmimed  at  sea ,  in  outward 
bound  steamerti,  held  that  such  consumption  was  not  an  exportation,  within  the  meaning  of 
the  act  of  March  '2,  1799,  to  regulate  the  collection  of  duties  on  imports  and  tonnage,  so  ae 
to  entitle  the  owners  to  a  drawbacit  for  duties  paid  upon  it. 

Held  that  the  act  of  Marcli  3,  1853,  making  appropriations  for  the  civil  and  diplomatic 
expenses  of  the  government,  by  which  the  Secretary  of  the  Treasury  was  authorized  to  can- 
cel any  outstanding  debenture  bonds  given  prior  to  July  1,  1850,  on  the  importation  of 
foreign  coal,  entitled  the  owners  also  to  drawback  for  the  duties  paid  on  such  coal. 

Interest  was  allowed  by  the  umpire  on  said  drawback  from  July  1,  1850. 


In  1835  a  steamer  of  tlie  Great  Western  Steamship  Company  ar- 
rived at  New  York,  and  was  required  by  the  collector  of  the  port  to 
land  the  surplus  coal  remaining  on  hoard  at  the  end  of  the  voyage, 
and  pay  duties  upon  it. 

This  was  esteemed  a  hardship,  so  iar  as  regarded  a  reasonable  sur- 
plus of  coal  remaining  on  hand,  because  it  was  contended  a  steamer 
should  take  on  board  enough,  not  only  for  a  voyage  of  the  ordinary 
duration,  but  to  piovide  for  the  contingencies  and  delays  that  are  con- 
stantly liable  to  arise,  and  that  so  long  as  they  have  a  supply, 
merely  to  this  extent,  a  duty  should  not  be  charged  upon  it  as  freight. 

Application  was  made  to  Congress  for  a  change  of  the  law  to  this 
effect,  and  an  act  was  passed  exempting  such  amount  of  coals  from 
duty. 

The  steamship  company,  however,  desired  further  relief  and  com- 
menced 8hipi>ing  coal  to  New  York  in  other  vessels.  They  landed  the 
coal,  paid  the  duties  upon  it,  and  stored  it  in  warehouses.  They 
then  supplied  their  steamers  from  tlie  coal  tlius  deposited,  and  con- 
sumed it  on  their  outward  voyage,  and  under  the  act  of  March  2,  1799, 
to  regulate  the  collection  of  duties  on  imports  and  tonnage,  claimed  a 


reta 

ally 

ui)o: 

of  8 

colli 

and! 

grcJ 


CONVENTION   WITH   GREAT   BRITAIN. 


329 


(Utward 
iiiing  of 
re,  80  as 

^lomatic 
1  to  can- 
tation  of 


any  ai'" 

port  to 
voyage, 

He  sur- 
steamer 

)rdinary 
are  con- 
supply? 
freight. 

V  to  this 
Dais  from 

and  com- 
^nded  the 
l;s.     They 

and  con- 
li  2,  1799, 

claimed  a 


drawback  on  the  coal  thus  consumed,  on  the  ground  that  it  was  an  ex- 
portation within  the  moaning  of  the  act. 

The  officers  of  custon)s,  however,  denied  that  such  consumption  of 
coal  was  an  exportation  within  the  meaning  uf  the  act  of  1799,  and 
declined  allowing  a  drawback  for  the  duty. 

The  steamboat  compafty  then  memorialized.  Congress  in  1840,  pray- 
ing the  enactment  of  a  law  "  to  enable  them  to  cancel  tlieir  bonds 
previously  given  on  the  importation  of  coal,  and  autliorizing  them 
thereafter  to  take  the  benefit  of  drawback  on  producing  proof 
either  of  tlie  consumption  of  such  coal  on  the  outward  voyage,  or  of 
the  landing  it  in  a  foreign  •"     ntry." 

The  memorial  wai  ^ferr*  "o  a  committee  c  i.  ^Senate  of  the 
United  States.  Instead,  however,  of  complying  with  the  request  ot 
the  memorialists,  a  majority  of  the  committee  reported  that,  having 
examined  the  law  of  debenture  certificates  and  drawback,  they  were 
of  opinion  that  the  eighty-first  section  of  the  act  of  1799  was  complied 
with,  if  the  coal  was  consumed  on  the  voyage,  and  that  the  comptrol- 
ler had  ample  authority  under  the  act  to  cancel  the  bonds.  They 
held  this  construction  to  be  in  strict  harmony  with  the  policy  of  the 
act  and  in  conformity  to  its  meaning. 

This  report,  on  being  made,  caused  immediate  opposition  in  the 
Senate.  Some  debate  occurred,  when  it  Avas  postponed  for  further 
consideration  to  the  next  dtiy,  and  was  further  postponed  to  the  3d 
of  March,  1840.  The  Senate  then  proceeded  to  consider  the  resolu- 
tion reported  by  the  committee,  and,  after  full  debate,  it  was  voted 
that  the  resolution  lie  on  the  table  by  a  vote  of  twenty- six  to  sixteen. 
The  report  of  the  committee  was,  therefore,  disavowed  by  the  Senate. 

Subsequently,  however,  this  report  of  the  committee  of  the  Senate 
was  cited  as  an  authority  with  the  collectors  of  the  customs  to  obtain 
a  drawback,  and  in  some  instances  a  drawback  was  allowed. 

Application  from  Boston  was  submitted  to  Mr.  Forward,  then  Sec- 
retary of  the  Treasury,  on  the  29th  of  July,  1841,  and  he  provision- 
ally allowed  the  drawback  in  a  special  case.  This  decision  was  acted 
ui)on  for  a  short  period  both  at  Boston  and  New  York.  On  the  12th 
of  September,  1842,  however,  Mr.  Forward  addressed  a  letter  to  the 
collector  at  New  York,  referring  to  his  decision  in  the  case  at  Boston, 
and  stating  '•  that  owing  to  the  decided  expression  of  opinion  by  Con- 
gress in  the  tariff  act  then  before  them,  against  allowing  debenture  on 


I 


ll 


330 


ADJUSTMENT   OF  CLAIMS   UNDER    THE 


coal  consumed  on  outward  voyages,  no  debenture  on  coals  would  be 
allowed  after  the  29th  of  August,  1842." 

On  the  26th  of  August,  1842,  he  sent  a  copy  of  this  letter  to  the 
collector  of  Boston  for  his  instruction. 

It  is  alleged  that  at  Boston,  from  1843  to  184(5,  the  Cunard  com- 
pany had  their  duties  returned  and  bonds  cancelled.  Subsequent  to 
this  the  claim  as  to  drawback  remained  in  controversy  until,  by  the 
seventh  section  of  the  act  of  March  3,  185;i,  making  a^Mropriations 
for  the  civil  and  dii^lomatic  expenses  of  the  go .  jrnmcnt,  it  was  enacted, 
*'  that  the  Secretary  of  the  Treasury  should  be  authorized  to  cancel 
any  outstanding  debenture  bonds  given  prior  to  July  1,  1850,  upon 
the  importation  of  foreign  coals,  provided  the  said  coals  have  been  ex- 
ported to  a  foreign  port,  or  consumed  upon  the  outward  voyage,  and 
shall  not  have  been  consumed  in  the  United  States." 

This  section  provided  merely  that  outstanding  debenture  bonds 
should  be  cancelled,  but  did  not,  in  terms,  require  a  repayment  of  the 
duties  assessed.  The  company,  however,  claimed  to  give  it  that  con- 
struction. They  contended  that  the  provision  for  cancelling  the 
bonds  had  no  meaning  or  effect  unless  it  implied  that  the  duties  were 
to  be  repaid. 

Ml.  Secretary  Guthrie,  however,  declined  to  give  this  interpretation 
to  the  act.  In  a  letter  of  April  1853,  to  the  collector  of  New 
York,  he  says  in  reference  to  the  seveuth  section  of  the  civil  and  diplo- 
matic appropriation  bill,  "that  on  a  careful  consideration  of  its  pro- 
visions, he  thinks  the  only  authority  given  is  to  direct  the  cancelling 
the  bonds  on  proof  of  consumption  of  the  coals,  and  that  he  does 
not  feel  at  liberty  to  go  beyond  the  express  authority  granted  in  the 
law,  and  authorize  a  restoration  of  duties  in  the  form  of  debenture  or 
otherwise,  where  duties  have  been  paid.  Such  further  relief  can  only 
be  by  express  legislation." 

Hannen,  agent  and  counsel  for  Great  Britain. 

Thomas,  agent  and  counsel  for  the  United  States. 


bo 
the 


.m. 


CONVENTION   WITH   GREAT   BRITAIN. 


331 


Id  be 

,0  the 

cem- 
ent to 
Dy  the 
ations 
lacted, 
cancel 
,  upon 
3en  ex- 
re,  and 

I  bonds 
t  of  the 
lat  con- 
ing the 
ies  wore 

retation 
of  New 
id  diplo- 
f  its  pro- 
mcelling 
1  he  does 
ed  in  the 
entuve  or 
•  can  only 


Upiiam,  United  States  Connuissiouji  : 

Such  is  a  hriof  recital  of  the  various  acts,  and  the  constructions 
jdaced  upon  them,  in  reference  to  debentures  on  coal  consumed  on 
outward  voyages. 

The  first  question  whieh  arises  in  the  case,  is  whether  tlic  construc- 
tion of  the  act  of  1799,  as  contended  for  by  the  officers  of  tlie  customs, 
is  correct.  On  that  point  I  havu  no  doubt.  A  consumption  of  coal 
on  an  outward  voyage  is  not,  as  I  believe,  an  ex]iortation  of  coal 
within  the  meaning  ol  the  statute. 

The  exportation  there  contemplated  is  an  exi)ortatiou  of  articles  to 
another  country,  in  the  ordinary  course  of  trade,  as  freight.  This  is 
apparent  from  express  provisions  in  the  act. 

The  81st  section  of  the  act  provides,  ''tliat  in  order  to  entitle  the 
owner  of  merchandise  to  a  drawback  on  goods  exported,  he  shall  file  a 
bond  with  condition  that  such  goods  shall  not  be  relanded  in  any  port 
or  place  within  the  limits  of  the  CFnited  States,  and  if  the  certificates 
and  other  proofs  required  by  law  of  the  delivery  of  the  same  at  the 
port  to  which  the  vessel  is  consigned,  or  at  some  other  port  or  place 
without  the  limits  of  the  United  States  shall  be  produced  at  the  col- 
lector's office  within  a  certain  specified  time,  then  the  obligation  shall 
be  null  and  void,  otherwise  it  shall  remain  in  full  force." — (Laws  of 
the  United  States,  vol.  3,  p.  214,  ed.  1815.) 

The  statute  further  prescribes  what  shall  constitute  evidence  of  such 
exportation.  The  ordinary  evidence  of  exportation  is  the  certificate 
of  the  consignee  specifying  the  landing  of  the  merchandise  in  a  foreign 
country,  verified  by  the  consul ;  or,  in  case  there  is  no  consul,  by  two 
merchants,  under  oath,  and  by  the  master  of  the  vessel. 

It  farther  provides,  however,  that  in  case  of  loss  at  sea.  or  other  un- 
avoidahle  accident,  or  where,  from  the  nature  of  the  trade,  such  proofs 
cannot  be  produced,  the  exporter  shall  be  allowed  to  produce  "  such 
other  proofs  as  he  may  have,  and  as  the  nature  of  the  case  will  ad- 
mit ;"  and  if  the  comptoller  be  satisfied  of  their  truth  he  may  direct 
the  bonds  to  be  cancelled  and  refund  the  duties. 

In  this  case  no  evidence  has  been  or  can  be  given  of  the  landing  of 
the  coal  in  any  other  port  or  place  without  the  limits  of  i\\Q  United 
States,  and  there  is  no  loss  at  sea  or  other  unavoidable  accident  com- 
plained of.     There  is  nothing,  therefore,  to  exempt  the  claimants 


f 


332 


ADJUSTMENT  OF  CLAIMS   UNDER   THE 


from  the  ordinary  evidence  of  exportation,  unless  the  case  can  be 
brouf^'ht  within  the  exception,  that  "  the  nature  of  the  trade"  is  such 
that  the  usual  proof  required  cannot  be  obtained. 

This  renders  it  necessary  to  inquire  to  what  class  of  tradia  this  ex- 
pression refers?  It  undoubtedly  refers  to  the  trade  or  coinmerce  then 
carried  on  with  various  uncivilized  sections  of  tlie  globe — sudi  as  the 
northwest  coast  of  Africa,  the  East  India  islands,  and  other  places 
where  the  evidence  of  consuls  ami  lucrchants  could  not  bo  obtained. 

It  is  a  forced  construction  to  contend  that  by  the  act  of  1799  con- 
8uni}»tion  of  coal,  on  an  outward  voyage,  is  included  in  the  term 
exportation  within  the  meaning;;  of  the  act. 

The  coal  was  imported  for  use  by  the  Great  Western  Steamship 
Company,  on  board  their  vessels  on  their  outward  voyages,  and  should 
be  subject  to  a  charge  for  such  use,  as  much  as  if  consumed  on  shore. 
A  drawback  on  goods  exported  is  granted  on  the  ground  that  they  are 
in  transit  for  a  market,  but  where  they  have  once  found  a  market  so 
as  to  be  ai)propriate(l  to  use,  and  are  not  further  placed  in  transitu,  as 
an  article  of  commerce,  the  ordinary  duty  claimed  on  the  article  right- 
fully attaches,  whether  it  be  consumed  at  sea  or  on  land. 

I  do  not  regard  the  claimants,  therefore,  as  entitled  to  a  drawback 
by  the  act  of  1799. 

It  becomes  then  necessary  to  inquire  into  the  eifect  of  the  recent  act 
of  March  3,  1853,  to  determine  whether  a  drawback  is  allowed  by 
that  act.  In  the  opinion  of  Secretary  (iuthrie,  it  authorizes  merely 
the  cancelling  of  the  bonds  given,  and  does  not  provide  for  a  restora- 
tion of  the  duties  in  the  form  of  debenture  or  otherwise. 

There  are  reasons,  however,  that  might  hold  him  to  a  rigid  con- 
struction of  the  act,  that  do  not  necessarily  operate  upon  us.  The 
act  of  April,  1853,  does  not  expressly  provide  that  a  drawback  shall 
be  paid.  An  administrative  officer  might  insist  on  some  specific  au- 
thority in  the  act,  or  some  judicial  construction  of  it  to  this  effect 
before  assuming  tlie  responsibility  of  the  rei)ayment  of  money. 

The  act,  however,  admits  of  the  construction  contended  for  by  the 
claimants,  and  its  passage  was  undoubtedly  obtained  through  their 
agency,  with  a  view  to  effect  the  purpose  now  claimed  for  it.  The 
rejieated  attempts  at  prior  legislation  for  this  end  might  well  affix  on 
Congress  the  knowledge  of  such  an  intent  by  the  clause  presented, 
and  imply  their  acquiescence  in  it. 


CONVENTION   WITH  GREAT   BRITAIN. 


333 


X  be 
such 

9  ex- 
then 
8  the 
(laces 
ed. 
)  con- 
term 

inship 
should 
shore, 
ley  are 
,rket  80 
situ,  as 
Q  right- 

■awback 

cent  act 
)wed  hy 
}  merely 
restora- 

igid  con- 
ns. The 
Eick  shall 
ccific  au- 
his  eifect 

for  hy  the 
ugh  their 
■  it.  The 
ai  affix  on 
presented. 


The  different  constructions  also  put  a*  different  periods  on  tluv prior 
act  relative  to  drawbacks,  is  a  reason  Avhy  the  officers  of  the  govern- 
ment and  claimants  should  both  wish  some  final  legislation.  I  am 
inclined,  therefore,  to  give  it  the  interpretation  placed  on  it  by  the 
claimants.  The  act,  by  any  otlier  construction,  would  be  almost 
nominal  in  its  character,  and  can  hardly  be  supposed  to  have  been 
made  the  object  of  special  legislation,  under  the  circumstances,  for 
such  a  purpose. 

I  tlierefore  allow  the  sum  of  eleven  thousand  four  hundred  and 
thirty-seven  dollars  and  twenty-five  cents  for  the  drawback  on  duties 
claimed  by  the  company  prior  to  1846.  There  is,  in  my  mind,  no 
legal  right  to  drawback  until  the  act  of  1853  was  passed,  and  a  claim 
to  interest  ought  not  to  go  behind  that  date. 

My  colleague  places  the  ground  of  allowance  of  the  claim  on  a  dif- 
ferent construction  of  the  acts  in  question,  and  computes  interest  from 
the  payment  of  the  duty.  The  question  of  interest  was  submitted  to 
the  umpire,  nnd  was  allowed  from  July  1,  1850. 


I 
I 


334 


ADJUSTMENT  OF  CLAIMS   UNDER   THE 


NEW  YORK  CU8TOM-IIOl'8E  CASKS. 


CHARLES  KENWORTIIY. 


Where  a  firitieh  aubject,  who  was  domiciled  in  New  York,  and  en|;aged  in  mercantile 
buiineHS  there,  was  sued  for  fraudulent  invoices  of  goods  imported  by  him,  which  suit  ho 
adjusted  with  the  government  by  payment  of  a  portion  of  the  num  demanded,  held  that  he 
was  bound  by  such  adjustment  from  any  revision  of  the  suit  before  this  commission. 

A  domiciled  merchar^t  of  the  United  States  or  Groat  Britain,  resident  in  the  country  of 
the  other,  has  no  right  to  the  action  of  this  commission  in  matters  of  current  business  em- 
braced within  the  ordinary  jurisdiction  of  the  courts  of  the  country  where  he  resides.  By 
treaty  of  July  3,  1H15,  such  persons  "are  entitled  to  protection  and  security,  but  are  to  be 
subject  always  to  the  laws  and  statutes  of  the  two  countries  respectively." 

Evidence  that  fears  were  entertained  lest  other  suits  might  be  instituted,  or  seizures  might 
be  made  unless  a  suit  was  adjusted,  or  a  general  prejudice  to  business  might  arine  from  con- 
troversy with  the  government,  docs  not  constitute  such  evidence  of  duress  as  to  avoid  a  set- 
tlement. 


va 
fn 
ad 


In  1839  the  claimant,  who  was  a  British  subject,  resided  in  the  city 
of  New  York,  and  had  been  engaged  there  for  some  years  in  the  im- 
portation and  sale  of  goods. 

From  February  13  to  July  10,  183'J,  certain  goods  were  imported 
by  him.  They  were  duly  examined,  the  duties  were  j»aid  on  them, 
and  they  were  removed  for  sale  to  Philadelphia.  They  were  there 
seized  as  having  been  entered  at  a  reduced  rate  of  invoice  and  fraudu- 
lent valuation. 

The  goods  consisted  of  397  pieces,  included  in  nine  invoices,  the 
total  value  of  which  was  over  £2,000.  One  hundred  and  two  of  these 
pieces  were  seized  at  Philadelphia.  An  adjustment  was  had  of  tliis 
suit  by  which  74  pieces  were  retained  by  government,  and  28  ])ieces 
were  restored  to  the  claimant. 


CONVBMTiON   WITU   GREAT  BRITAIN. 


836 


Claim  is  now  made  againHt  the  Unitetl  StatoH  to  recover  back  the 
value  of  the  property  Hcized,  on  the  ground  that  the  Hoixure  was  a 
fraudulent  act  of  the  collector  of  the  city  of  New  York,  and  that  any 
adjustment  made  was  obtained  by  duresH  and  extortion. 

Hannen,  agent  and  coimsel  for  Great  Britain. 

Tjiomas,  agent  and  counsel  for  the  United  States. 


ercantile 
limit  ho 
i  that  ho 

ountry  of 
linoBS  eiii- 
ido8.  By 
t  are  to  be 

lires  might 
from  con- 

ivoid  a  sel- 


i  the  city 
I  the  im- 

inipovted 
on  them, 
ere  there 
id  fraudu- 

»oioes,  the 

vo  of  those 

lad  of  thin 

28  pieces 


I 


i 


336 


ADJUSTMENT   OP  CLAIMS    UNDER  THE 


The  opinion  of  the  board  was  delivered  by 

TJpHAM,  United  States  Commissioner  : 

This  is  one  of  a  class  of  cases  in  all  involving  claims  to  the  amount 
of  between  two  and  three  hundred  thousand  dollars.  They  originate 
from  seizures  made  in  1839  by  Jesse  Hoyt,  collector  of  the  port  of 
New  York,  on  complaint  that,  for  some  years  previous,  a  series  of  im- 
portations on  false  invoices  had  been  made  at  that  port  by  merchants 
having  partners  or  houses  connected  with  them  in  Yorkshire,  Eng- 
land, by  which  the  revenue  had  been  defrauded  of  large  sums. 

Many  of  the  goods  were  sold  at  public  auction  in  New  York;  other 
sales  were  made  at  Philadelphia  and  in  Massachusetts.  Some  of  the 
importers  were  arrested,  and  one  or  more  fled  the  country.  A  portion 
of  the  cases  were  not  sustained  on  trial,  or  were  dismissed,  as  waM 
alleged,  owing  to  the  difficulty  of  obtaining  evidence  from  abroad; 
and  others  were  prosecuted  to  judgment,  or  were  settled  by  the  parties. 

A  considerable  amount  was  collected  from  these  suits,  and  paid  into 
the  public  treasury,  and  large  sums  were  received  by  the  collector  and 
the  prosecuting  officers  of  the  government  for  fees  and  charges.  A 
portion  of  these  charges  were  said  to  be  illegal  and  exorbitant.  Com- 
plaints were  also  made  as  to  the  mode  in  wliicli  the  prosecutions  were 
conducted,  and  a  committee  was  appointed  by  the  United  States  Sen- 
ate, of  which  Mr.  Poindexter  was  cliairman,  to  investigate  the  subject. 

A  voluminous  report  was  drawn  U])  by  the  committee,  and  sub- 
mitted to  the  Senate,  in  which  a  i)ortion  of  the  ])roceedings  were 
aeverely  commented  ujion,  but  no  definite  action  was  hud  on  the  re))ort. 

In  all  the  cases  i)f  this  class  which  have  been  i>resented  for  our  de- 
cision tlie  same  general  facts  exist — that  legal  jjrocess  was  instituted, 
a,nd  the  suits  were  either  prosecuted  to  judgment,  or  were  adjusted  by 
agreement  between  the  parties  comphiiued  of  and  the  government. 

Attempts  wero  made  to  j)rove  that  these 'adjustments  were  obtained 
by  duress.     JJut  the  evidence  iloes  not  sustain  tlie  charge. 

It  consists  merely  of  vague  statements  of  tlie  injury  arising  from 
custom-house  suits,  and  evidence  of  ai)prehen8ions  that,  unless  ad- 
justments were  effected,  otlier  suits  might  be  instituted  (»r  seizures 
n^ade.  Considerable  stress  was  also  laid  on  the  fact  that  the  prose- 
cuting officers  were  largely  interested  in  the  proceeds  of  such  suits, 


CONVENTION   WITH   GERAT    BRITAIN. 


337 


nount 
sjinate 
)ort  of 
of  im- 
chants 
!,  Eng- 

;  other 

e  of  the 
portion 

,  as  was 
abroad ; 

?  parties. 

paid  into 

ector  and 

,rges.     A 
t.     Coni- 

ions  were 
ates  Sen- 
le  subject, 
and  sul)- 
ings  were 
he  rei»ort. 
or  our  de- 
instituted, 
djusted  hy 
nnient. 
•e  obtained 

[rising  from 
unless  ad- 
or  seizures 
the  prose- 
isuch  suits, 


hut  there  was  nothing  to  establish  the  charge  that  the  suits  were 
brought  for  fraudulent  purposes,  or  that  an  honest  importer  should 
have  feared  their  result. 

In  some  of  these  cases  large  sums  were  paid  to  obtain  an  adjustment; 
and  it  seems  to  have  been  overlooked  that,  unless  such  adjustment 
is  explained,  it  tends  at  least  as  much  to  show  an  acknowledgement 
of  fraud  or  mistake  on  the  part  of  th^  importer  as  it  is  evidence  of 
duress  on  the  part  of  the  officers  of  government. 

The  suits  should  have  been  prosecuted  to  final  judgment,  if  a  valid 
defence  existed.  The  parties  were  resident  in  the  United  States,  and 
were  availing  themselves  of  the  protection  of  the  government  in  the 
transaction  of  their  business ;  and  they  should  not  have  adjusted  claims 
then  pending  against  them  in  courts  of  competent  jurisdiction,  and 
come  here  after  a  lapse  of  some  fourteen  years  expecting  their  recon- 
sideration. 

It  was  not  designed  that  this  commission  shbuld  take  cognizance  of 
such  cases.  The  respective  governments  bad  already  provided  by 
treaty  for  the  settlement  of  all  transactions  arising  out  of  the  ordi- 
nary business  of  commerce  by  persons  domiciled  in  the  government 
•of  the  other. 

The  convention  of  July  3,  1815,  to  regulate  commerce  between  the 
Territories  of  the  United  States  and  of  Great  Britain,  provides,  in 
article  first,  "that  the  inhabitants  of  the  two  countries,  respectively, 
shall  have  liberty  to  remain  and  reside  in  any  part  of  the  territories 
of  the  other,  where  other  foreigners  are  permitted  to  come ;  also  to 
hire  and  occupy  houses  and  warehouses,  for  the  purposes  of  their  com- 
merce ;  and  generally,  that  the  merchants  of  each  nation,  respectively, 
shall  enjoy  the  most  complete  protection  and  security  for  their  com- 
merce, but  subject  always  to  the  latos  and  statutes  of  the  two  countries, 
respectively." — (United  States  Statutes  at  Large,  vol.  8,  /j.  228.) 

It  was  manifestly  contemplated  in  this  provision  that  citizens  or 
subjects  of  either  government,  resident  in  the  country  of  the  other, 
engaged  in  commerce,  should  be  subject  to  the  laws  of  the  country 
where  they  reside,  in  all  ordinary  matters  pertaining  to  such  com- 
merce. The  adjudication  of  suits  arising  out  of  the  collection  of  the 
revenue  is  certainly  a  matter  of  local  jurisdiction  by  the  courts  of  the 
country,  and  there  can  be  no  appeal  from  them  to  this  tribunal. 

22 


k  i 


338 


ADJUSTMENT   OF  CLAIMS   UNDER  THE 


We  have  been  able  to  see  no  ground,  in  any  of  this  class  of  cases: 
which  have  been  presented  to  us,  that  entitle  them  to  recovery  under 
this  commission,  i, 


The  cases  of  Platt  &  Dq^JCAN ;  executors  of  William  Bottomley  ; 
William  Broadbent;  executors  of  John  Taylor  and  Samuel  Brad- 
bury ;  and  George  and  Samuel  Shaw,  for  whom  Mr.  Hannen,  assisted 
by  Mr.  Butt,  Queen's  counsel,  Mr.  Spinks,  and  others,  appeared  as. 
counsel,  were  holden  to  come  under  the  principles  of  this  decision, 
and  were  disposed  of  accordingly. 


of  cases 
y  under 


CONVENTION   WITH  OBEAT  BRITAIN. 


339 


.,.,    .;      .  ,-:     i 


TTOMLEY ; 

jL  Brad- 
,  assisted 
jeared  as. 
decision, 


McCALMONT,  GREAVES.&  COMPANY. 


The  claimants  ordered  goods  to  be  shipped  from  England  for  the  Mexican  market  at  Vera 
Cruz;  but  war  having  arisen  between  the  United  States  and  Mexico,  the  goods  were  shipped 
to  Havana,  and  remained  there  until  after  the  conquest  of  Vera  Cruz  by  the  American 
forces,  and  the  opening  of  that  port  to  foreign  trade  by  General  Wortlt,  who  was  placed  in 
command  of  the  place,  and  who  established  a  temporary  tariff  of  rates  on  importations  until 
such  time  as  he  should  receive  instructions  from  Washington.  On  the  establishment  of  this 
tariff,  the  claimants  ordered  their  goods  to  be  forwarded,  but  they  did  not  arrive  until  a  new 
tariff  had  been  established  by  the  department  at  Washington,  considerably  higher  than  that 
of  General  Worth . 

This  tariff,  in  some  particulars,  operated  seriously  to  tiie  prejudice  of  the  claimants,  and 
a  portion  of  their  goods  was  placed  in  the  public  store-house  till  application  could  be  made 
at  Washington  for  instructions  in  regard  to  them.  On  such  application,  the  tari^was  modi- 
fied, but  was  directed  to  be  applied  prospectively  only,  and  the  claimants  paid  the  full  duty. 
The  tariff,  in  the  matter  complained  of,  was  higher  than  the  Mexican  tariff,  but  was,  in  other 
respects,  lower.  The  claim  was  allowed  by  the  umpire  for  the  amount  paid  beyond  the 
tariff  last  established. 


The  claimants  are  British  merchants^  carrying  on  business  at  Vera 
Cruz.  They  ordered  shipments  of  goods  to  Mexico  from  their  corres- 
pondents in  England.  On  account  of  the  blockade  of  the  Mexican 
ports  by  the  United  States,  these  goods  were  first  sent  to  Havana. 

After  the  capture  of  Vera  Cruz  by  the  United  States  forces,  General 
Worth  established  a  temporary  tariff,  bearing  date  March  31,  1847, 
establishing  the  same  tariff  on  goods  received  into  Mexican  ports,  as 
on  imports  into  the  United  States,  with  an  additional  charge  of  ten 
per  cent,  ad  valorem,  until  such  time  as  instructions  should  be  received 
from  Washington.  On  the  opening  of  the  ports,  and  establishment 
of  this  tariff,  the  claimants  ordered  their  goods  from  Havana.  Before 
their  jirrival,  however,  a  new  tariff  was  received  from  Washington,  by 
which  the  duties  were  increased. 

On  the  arrival  of  the  goods,  complaint  was  made  of  the  increase, 
and  the  goods  remained  on  deposit  until  fnrtlier  instructions  could  be 


„l!ll 

HI*' 

H 
tiij 


340 


ADJUSTMENT  OF  OLAIMS   UNDER  THE 


received  from  Washington.  On  the  10th  of  June,  instructions  were 
received,  making  modifications,  in  some  respects,  as  to  importations, 
to  take  effect  subsequent  to  that  date. 

Applications  were  made  from  other  importers,  for  reduction,  to  Mr. 
Marcy,  Secretary  of  State,  but  were  rejected,  except  in  conformity  to 
the  above  order,  aa  appears  from  Mr.  Marcy's  despatch  to  Mr.  Cramp- 
ton,  of  the  8th  of  January,  1848. 

The  duties  on  cotton  goods  imported  were,  with  the  exception  of  a 
particular  description  of  goods,  far  lower  than  the  lormer  Mexican 
tariff.     On  the  woolen  goods  a  higher  tariff  was  imposed. 

Hannen,  agent  and  counsel  for  Great  Britain. 

Thomas,  agent  and  counsel  for  the  United  States. 


ii 


CONVENTION  WITH   GREAT  BRITAIN. 


841 


Upham,  United  States  Commissioner : 

This  case  presents  the  common  complaint  of  hardship  that  always 
arises  whenever  an  advance  of  tariff  is  made  contrary  to  the  expecta- 
tions of  the  importer. 

It  involves  two  difficulties  for  our  consideration.  In  the  first  place, 
this  commission  has  no  power  to  alter  and  control  the  clear  and  explicit 
effect  of  a  tariff  established  by  either  government,  in  order  to  grant 
lighter  terms  than  such  law  had  established. 

It  is  an  exercise  of  legislative  power  not  confided  to  us,  or  of  a  dis- 
l)ensing  power  which  is  equally  unauthorized. 

In  the  second  place,  the  application  now  addressed  to  our  discretion 
has  been  already  addressed  to  the  government  at  Washington,  and 
has  been  denied,  under  an  immediate  knowledge  at  the  time  of  all 
the  circumstances  of  the  case.  A  modification  of  the  tarifi"  was  made 
as  requested  in  reference  to  woolens  and  one  description  of  cotton 
goods,  but  was  directed  to  take  effect  prospectively,  for  the  reasow  that 
the  duties,  under  the  prior  tariff,  had  been  paid  on  various  importa- 
tions, and  it  was  not  supposed  the  case  was  such  as  to  require  a  retro- 
active effect. 

This  decision  was  afterwards  adhered  to  on  the  application  of  some 
German  merchants  ;  notice  of  which  was  communicated  to  the  British 
minister,  by  letter  of  Mr.  Marcy,  Secretary  of  State,  on  the  8th  of 
January,  1848, 

Were  the  case  in  our  control,  the  same  reasons  that  operated  on  the 
department,  in  making  this  decision,  should  operate  on  us  at  this  time, 
but  there  is  no  right  of  appeal  to  us  from  their  decision.  We  may 
give  a  construction  in  matters  of  strict  law  to  an  established  tariff  dif- 
ferent from  that  given  by  the  officers  of  the  government ;  but  their 
decision  on  matters  confided  by  law  to  their  discretion  is  final.  We 
cannot  go  behind  the  tariff"  to  overrule  it. 

Some  confusion  exists  in  the  statements  as  to  the  tariff  complained 
of.  My  colleague,  in  speaking  of  the  application  of  the  German 
merchants,  says  that  the  tariff  of  the  30th  of  March,  though  higher 
than  General  Worth's  tariff,  was  ''  much  loioer  than  the  Mexican 
tariff. "  In  another  portion  of  his  opinion,  speaking  of  the  same  tariff, 
in  reference  to  this  claim,  he  says  "the  duties  were  much  higher  than 
the  Mexican  tariff."     These  diversities  are  accounted  for  b' the  fact 


il 


I 


il 


n 


342 


ADJUSTMENT   OP  CLAIMS   UNDER  THE 


that  tlie  remarks  apply  to  clifFerent  portions  of  the  tariff.  On  cotton 
goods,  with  the  exception  of  a  particular  article  of  that  description, 
the  duties  were  much  lower,  while,  on  woolens,  they  were  much  higher 
than  under  the  Mexican  tariff. 

The  importation  of  the  claimants  in  this  case  consisted  both  of  cot- 
ton and  woolen  goods,  in  large  quantities  of  each-  My  impression  is 
that,  on  the  whole  importation,  they  were  gainers  by  the  change  of 
governments,  at  least  that  their  loss  was  of  but  small  amount.  If  so, 
it  would  obviate  any  appeal  on  account  of  the  general  hardship  com- 
plained of,  and  the  case  resolves  itself  into  a  mere  question  as  to  what 
extent  the  claimants  should  profit  by  the  American  occupation  of 
Mexico.  It  is  certain  that  the  damage  is  much  less  than  would  ap- 
pear from  the  operation  of  the  tariff  on  one  class  of  goods  alone. 

The  views  of  my  colleague  that  "  if  we  find  the  claim  to  be  a  just 
one,  and  deserving  of  relief,  we  are  bound,  by  the  terms  of  the  con- 
vention, to  grant  it,  wholly  irrespective  of  the  question  whether  any 
officer  of  either  government  could,  or  could  not  do  so,  under  any  par- 
ticular statute,"  and  that  we  can  grant  relief  "in  any  case  where  Con- 
gress could  have  given  it,  if  on  examination  it  was  found  to  be  a  case 
in  which  the  parties  were  equitably  entitled  to  it,"  I  cannot  consent  to. 

For  the  reasons  given,  I  am  of  opinion  no  proper  ground  is  presented 
for  the  exercise  of  our  authority  within  the  powers  assigned  to  us. 


'W 


11 


!l 


CONVENTION    WITH    GREAT    BRITAIN. 


343 


Hornby,  British  Commissioner  : 

This  claim  is  in  the  nature  of  an  appeal  to  the  sense  of  equity  of  the 
United  States  government ;  and  it  being,  as  I  conceive,  tlie  intention 
of  the  contracting  parties  to  the  convention  of  1853,  xinder  which  we 
act,  that  the  commissioners  should  decide  upon  all  claims  duly  sub- 
mitted to  them  according  to  justice  and  equity,  1  am  of  opinion  that 
it  is  properly  brought  under  our  notice. 

From  the  investigation  which  has  already  taken  place  into  the 
circumstances,  and  from  the  correspondence  between  the  two  govern-- 
ments,  it  appears  that  the  claimants  are  British  merchants,  carrying 
on  business  at  Vera  Cruz.  In  the  early  part  of  1847  they,  in  the 
ordinary  course  of  their  business,  prepared  extensive  shipments  of 
goods  from  England,  nearly  the  whole  of  which  were  suited  only  for 
the  markets  of  Mexico.  In  consequence  of  the  blockade  of  the  Mexican 
ports,  which  was  declared  by  the  United  States  on  the  20th  of  May, 
1847,  the  claimants'  correspondents  despatched  the  vessels  conveying 
the  goods  to  Havana,  there  to  await  the  orders  of  the  owners.*  The 
claimants  directed  them  to  remain  there  until  the  ports  of  Mexico 
should  be  opened. 

On  the  capture  of  Vera  Cruz  by  the  United  States  forces.  General 
Worth  (who  was  in  command  of  the  troops  occupying  that  place) 
published,  on  the  5th  of  April,  a  tariff  bearing  date  "  Vera  Cruz,  the 
31st  March,  1847,"  by  which  the  port  was  opened  to  foreign  com- 
merce, and  the  same  duties  were  imposed  as  in  the  United  States, 
with  lO-s  per  cent.,  ad  valorem,  additional. 

This  tariff  appearing  objectionable  in  several  particulars,  the  British 
and  foreign  merchants,  resident  at  Vera  Cruz,  on  the  6th  of  April 
memorialized  General  Worth  on  the  subject,  and  he,  in  consequence 
of  their  remonstrances,  made  some  modifications  in  the  tariff.  On 
the  faith  of  this  tariff  thus  modified,  the  claimants  transmitted  orders 
to  their  correspondents  in  Havana  to  send  on  their  goods  to  Vera 
Cruz,  and  they  accordingly  arrived  in  the  "Susan"  and  "George  W. 
Randall,"  on  the  20th  and  27th  of  May. 

In  the  interval  between  the  sending  of  the  directions  by  the  claimants 
to  their  correspondents  to  forward  the  goods  and  their  arrival,  namely, 


'Arrived  at  Havana  during  the  months  of  July  and  August,  1846, 


344 


ADJUSTMENT   OF   CLAIMS   UNDER  THE 


;P 


on  the  7th  of  May,  a  new  tariff,  which  had  been  published  at  Wash- 
ington on  the  31st  of  March,  came  into  operation  at  Vera  Cruz. 
Foreseeing  the  losses  they  would  sustain  if  all  the  provisions  of  this 
tariff  were  enforced  on  tlio  goods  they  were  daily  expecting,  the 
claimants,  in  conjunction  with  other  British  merchants,  submitted  to 
the  United  States  government  a  statement  of  the  hardships  they  had 
to  complain  of. 

On  the  arrival  of  the  goods,  Messrs.  McCalmont,  Greaves  &  Com- 
pany, noted  protests  before  the  collector  of  customs  (through  her 
Majesty's  consul)  against  the  application  of  the  Washington  tariff  to 
their  case,  because,  in  several  instances,  the  duties  would  be  more  than 
the  value  of  the  goods  in  the  market,  and  because  they  had  been 
ordered  to  be  sent  on  on  the  faith  of  General  Worth's  tariff  con- 
tinuing in  force. 

The  collector  of  customs  agreed  that  the  goods  should  remain  in 
deposit  until  replies  should  be  received  to  the  representations  which 
the  claimants  had  transmitted  to  Washington. 

The  goods  accordingly  remained  in  deposit  until  the  arrival  of  an 
order  from  Washington,  dated  the  10th  of  June,  by  which  the  tariff 
was  again  altered,  and  the  evils  which  had  formed  the  subject  of  the 
British  merchants'  representations  almost  entirely  removed.  Upon 
the  receipt  of  this  order  the  claimants  proposed  to  pay  the  duties  im- 
posed by  it  on  the  goods  which  had  arrived  by  the  "  Susan  "  and 
"George  W.  Randall,"  and  had  since  remained  in  deposit ;  but  were 
informed  that  the  modifications  which  had  formed  the  object  of  their 
previous  representations,  and  for  which  they  had  waited,  were  not  to 
be  applied  to  tlieir  goods  ;  and  on  the  22d  November  the  claimants 
were  comi)elled  to  pay  for  duties  : 

On  the  goods  by  the  "  Susan  "  -  -  -        $84,952  43 

On  goods  by  the  "  G.  W.  Randall"   -  -  -  12,316  82 


97,269  25 


being  $18,877  87  more  than  they  would  have  had  to  pay  under  the 
order  of  the  10th  of  June,  for  which  they  had  waited,  and  which  they 
had  exerted  themselves  to  obtain  on  account  of  those  very  goods,  and 
under  wJdcJi  their  rivals  in  business  ivere  then  importing  similar  articles, 
being  also  far  more  than  they  loould  have  had  to  pay  either  under  the 
Mexican  tariff  or  under  that  published  by  General  Worth. 


CONVENTION   WITH  OBEAT  BRITAIN. 


345 


lUZ. 

this 

the 
3d  to 

had 

Com- 
li  her 
riff  to 
3  than 
L  been 
ff  con- 

lain  in 
I  which 

d  of  an 

le  tariff 

t  of  the 
Upon 

ities  im- 

1 ' '   and 

3ut  were 
of  their 
e  not  to 
aimants 

4,952  43 
2,316  82 

it, 269  25 

under  the 
hich  they 
oods,  and 
IV  articles, 
under  the 


^ 

'!i\ 


In  short,  they  were  unable  to  compete  either  with  those  traders  who 
imported  previous  to  the  arrival  of  the  "  Susan  "  and  **  G.  W.  Ran- 
dall," or  a/ifer  their  arrival. 

The  amount  of  excosH  is  made  out  in  the  following  manner  : 

On  54  bales  of  woolen  and  worsted  fabrics  per  invoice,  $7,813  35, 
the  claimants  had  to  pay.  for  duties  $11,106  58. 

By  the  order  from  Washington  the  duties  of  these  goods  would  be 
only  $2,344.  Under  the  Mexican  tariff  they  would  have  been  $3,Y76 
97,  showing  an  excess  of  $8,762. 

The  duties  in  this  case  are  equal  to  142  per  cent,  on  the  original 
value,  and  exceed  the  market  value.  On  cotton  fabrics  the  claimants 
had  to  pay  more  than  they  would  have  had  to  pay  under  the  new 
tariff  by  $7,154  29  ;  to  which  must  be  added  $2,961  in  respect  of 
abatement  on  damage  which  the  claimants  would  have  been  entitled 
to  under  tlie  new  tariff — making  a  gross  total  of  excess  duties  paid, 
$18,877. 

The  United  States  government  have  hitherto  resisted  this  claim  on 
two  grounds* — the  first  being  that  a  similar  application,  made  by 
Baron  Gerolt,  the  Prussian  minister,  on  behalf  of  certain  German 
merchants,  had  been  refused  ;  the  second,  that  the  act  was  not  retro- 
spective, and  that  the  Secretary  of  the  Treasury  could  not  remit  the 
duties.  With  respect  to  the  first  ground,  it  will  be  found,  as  appears 
by  Mr.  Marcy's  dispatch  of  June  26,  1847,  to  Baron  Gerolt,  that 
the  application  of  the  German  merchants  was,  in  fact,  very  different, 
although  he  supposed  it  to  be  ''  similar,"  from  that  made  by  the  pre- 
sent claimants.  Those  merchants  (the  Germans)  shipped  their  goods 
from  Germany  with  reference  to  the  Mexican  tariff.  Immediately, 
and  at  the  time,  however,  of  their  actual  arrival.  General  Worth's 
tariff  was  in  force,  which  had  reduced  the  duties  very  considerably  ; 
but  before  their  goods  were  fully  entered,  the  tariff  of  the  30th  March, 
raising  the  duties  levied  under  General  Worth's  tariff,  but  still  placing 
them  much  belotv  the  Mexican  tariff,  came  into  operation  ;  and  it  was 
from  paying  the  duties  under  this  last  tariff  that  they  sought  relief. 
The  United  States  government,  however,  very  properly  conceived  that 
the  merchants,  having  actually  shipped  those  goods  on  the  faith  of 
the  heavy  Mexican  tariff,  could  not  complain  of  having  to  pay  the 
comparatively  light  tariff  of  March  30,  although  a  still  lighter  one, 


See  Mr.  Marcy's  dispatch  to  Mr.  Crampton  of  January  8,  1848. 


346 


ADJUSTMENT   OF  CLAIMS   UNDER  THE 


I 


II 


namely,  that  established  by  General  Worth,  might  have  intervened 
and  actually  did  intervene,  between  tlie  two.  But  this  is  tiot  the  case 
of  the  claimants ;  thoir  agents  at  Vera  Cruz  ordered  on  the  cargoes 
from  Havana  on  the  faith  of  General  Worth's  tariff ;  and  it  is  from 
the  mistakes  which  had  inadvertently  crept  into  the  Washington  tariff, 
and  which,  as  soon  as  pointed  out,  were  corrected,  that  tlioy  seek  re- 
lief; they  having  themselves  pointed  out  the  mistake,  and  deposited 
their  goods  to  abide  the  correction  ;  that  correction,  however  wh«>n 
made,  being  declared  not  retrospective  in  its  effects.  The  precedent 
of  the  German  merchants  is  then  inapplicable  to  the  present  case,  and 
cannot  be  considered  as  binding  on  the  United  States  government  so 
as  to  prevent  them  granting  the  relief  now  prayed. 

With  regard  to  the  second  ground  of  objection,  it  may  be  that  the 
act  of  Congress  was  not  retrospective ;  but  this  fact  does  not  lessen  the 
right  of  the  claimants  to  eciuitable  relief;  on  the  contrary,  it  is  this 
fact  which  renders  the  present  claim  necessary.  Neither  is  it  an  an- 
swer to  tlie  claim  to  say  that  relief  could  not  be  granted  under  the  act 
of  March  3,  1849,  which  only  enables  the  Secretary  of  the  Treasury, 
without  application  to  Congress,  to  grant  relief  to  merchants  in  respect 
of  duties  "  improperly  levied  or  imposed,"  The  duties,  however,  in 
this  case,  in  strict  law,  were  ''properly  levied  and  imposed,"  because 
there  was  in  existence  a  tariff  imposing  them  sufficient  in  itsi  If  to 
warrant  the  levying  ;  but  this  imposition  was  founded  on  a  mistake, 
and  when  the  mistake  was  corrected,  which  it  was  immediately  on 
being  pointed  out,  (the  goods  in  the  meantime  being  kept  in  bond,) 
both  justice  and  equity  seem  to  me  to  point  to  the  relief  of  the  claim- 
ants. Nor  in  granting  this  relief  would  any  advantage  be  given  to 
them  over  other  merchants,  for  all  they  wanted  was  to  be  allowed  to 
introduce  tlieir  goods  into  the  market,  paying  the  same  duties  that 
goods  introduced  at  the  same  time  were  paying  ;  and,  this  being  de- 
nied to  them,  the  claim  arises. 

It  is  clear  to  me  that  Mr.  Walker's  opinion  only  went  to  the  prac- 
ticability of  granting  relief  under  the  congressional  act  of  March  30, 
1849.  The  commissioners,  however,  have  nothing  to  do  with  that  act, 
which  is  applicable  only  to  the  Secretary  of  the  Treasury.  If  we  find 
the  claim  to  be  a  fair  and  equitable  one,  we  are  bound  to  ailmit  it, 
leaving  in  the  case  of  the  United  States  to  Congress,  and  in  that  of 


Wa 
able 
In 
tha^ 

lint 
I 

ami 

tabj 
oftl 
Brij 
pro! 


CONVENTION   WITH    GREAT   BRITAIN. 


847 


case 

goes 

from 

iriff, 

k  re- 

(sited 

wh«»u 

edent 

3,  and 

jnt  80 

I  at  the 
len  the     . 
18  this 
an  an- 
the  act 
easury, 
L  respect 
ever,  in 
because 
it8.  U  to 
mistake, 
lately  on 
in  bond,) 
he  claim- 
>  criven  to 
lUowed  to 
uties  that 
being  de- 

3  the  prac- 
March  30, 
th  that  act, 
If  we  find 
;o  admit  it, 
1  in  that  of 


Great  Britain  to  Parliament,  the  provision  of  the  means  of  paying 
what  wo  award. 

Looking,  then,  at  the  fact  that  tliose  goods  were  ordered  on  to  Vera 
Cruz  on  the  faith  of  one  tariff ; 

That  on  arriving  there  they  were  met  by  a  tarift'  which  imposed 
duties  that  amounted  to  a  complete  confiscation  cf  their  goods  ; 

That  the  goods  were  deposited,  or  in  other  words  allowed  to  remain, 
in  bond  under  the  seals  of  the  collector  ; 

That  they  were  afterwards  compelled  to  pay  those  duties,  and  to  in- 
troduce the  goods  into  the  market,  at  the  same  that  goods  paying  the 
modified  duties  were  introduced  ; 

That  in  the  opinion  of  Mr.  Dimond,  the  co"octor  of  Vera  Cruz, 
who  knew  all  the  circumstances,  the  claimants'  case  "  was  fairly 
stated,  and  well  entitled  to  the  considerate  attention  of  the  govern- 
ment ;"  and  that  the  professed  object  of  the  government,  as  stated  by 
Mr.  Walker  in  his  preamble  to  the  tariff  of  March  30,  (in  which  the 
mistake  was  made,)  was  to  "  substitute  a  moderate  duty  when  com- 
pared with  that  imposed  by  Mexico,"  but  which,  in  fact,  through  the 
mistake  made  and  afterwards  corrected,  "substituted  an  exorbitant 
duty  when  compared  with  that  imposed  by  Mexico,"  the  claimants 
are,  on  every  principle  of  equity,  entitled  to  the  benefit  of  the  correc- 
tion, and  to  have  their  goods  placed  on  the  same  footing  as  similar 
goods  introduced  at  the  same  time  in  the  same  market. 

A  doubt  has  been  raised  by  my  colleague  as  to  whether,  Mr. 
Walker  having  stated  his  inability  to  remit  the  excess  duties,  we  are 
able  to  go  behind  his  authority,  and  do  that  which  he  could  not  do. 
In  this  doubt  I  confess  I  do  not  participate.  It  is  clear  to  my  mind 
that,  finding  a  claim  to  be  a  just  one,  and  deserving  of  relief,  we  are 
by  the  terms  of  the  convention  bound  to  admit  it,  loholly  irrespective 
of  whether  or  not  any  officer  of  either  governvient  could  or  could  not, 
under  any  jyarticular  statute,  have  given  the  relief  prayed  for. 

It  is  clear  that  Congress  itself  could  have  given  the  relief  if,  on  ex- 
amination, it  was  found  to  be  a  case  in  which  the  parties  were  equi- 
tably entitled  to  it;  and  I  hold  that  Congress  through  the  Executive 
of  the  United  States,  and  Parliament  through  the  Executive  of  Great 
Britain,  have  delegated  to  us  the  task  of  inquiring  into  all  claims 
properly  presented  under  the  first  and  third  sections  of  the  convention 


348 


ADJUSTMENT   OF  CLAIMS  UNDER  TUB 


of  1853,  and  of  deciding  upon  their  morits  whether  they  arc  entitled 
to  redress  or  not;  and  if  to  redress,  to  what  amount. 

To  liold  ((therwiso  might  have  had  the  eflfect  of  fVustra  i  ,  tho 
whole  object  of  tho  convention,  for  it  is  not  to  he  assumed  that  tl^^r 
government  knew  particularly  what  were  the  exact  nature  and  extent 
of  the  powers  of  individual  officers  of  State  under  the  respective  con- 
stitutions of  the  two  countries. 

I  award,  therefore,  the  sum  of  $18,877  87,  with  interest  from  the 
22d  Novemher,  1847,  to  the  15th  January,  1856. 


Il'i  J  !. 


CONVENTION   WITH   GREAT  BRITAIN. 


349 


Batks,  Umpire: 

This  claim  arises  out  of  the  following  circumstances :  Messrs.  Mc- 
Oalmont,  Qreavcs  &  Co.,  being  engaged  in  the  trade  to  Mexico  in  the 
year  1846,  prepared  a  largo  omount  of  goods  for  that  market;  but 
hearing  of  the  declaration  of  war  and  blockade  of  the  Mexican  ports 
by  the  forces  of  the  United  Stotcs,  they  shipped  their  goods  to  Ha- 
vana, there  to  wait  the  removal  of  the  blockade  and  the  order  of  their 
Vera  Cruz  partner. 

These  goods  were  prepared  for  the  Mexican  market  under  the  sup- 
position that  they  would  have  to  pay  duties  according  to  the  Mexican 
tariff.  Vera  Cruz  was  captured  by  the  American  forces  in  March, 
1847,  and  General  Worth  opened  the  trade,  and  issued,  on  the  Ulst 
March,  a  temporary  tariff,  to  remain  in  force  until  further  orders  from 
the  United  States  government  at  Washington. 

This  temporary  tariff  established  generally  the  same  duties  as  were 
payable  in  the  United  States,  with  ten  per  cent,  ad  valorem  in  addi- 
tion. Representations  were  made  to  General  Worth,  and  he,  in  con- 
sequence, made  some  alterations  in  his  tempoi'ary  tariff.  After  these 
modifications,  the  claimants'  partner  at  Vera  Cruz  sent  orders  to 
Havana  for  their  goods  to  be  sent  forward.  They  were  shipped  per 
Susan  and  per  George  W.  Randall,  and  were  daily  expected  to  arrive, 
when  the  new  tariff  (dated  31st  March)  was  received  from  Washington. 
The  provisions  of  this  tariff  were  very  injurious  to  the  interests  of  the 
claimants,  who  remonstrated,  and  sent  immediately  to  Washington, 
praying  for  modifications. 

The  Susan  and  George  W.  Randall  arrived  on  the  27tli  May.  The 
collector  of  the  customs  at  Vera  Cruz  permitted  the  goods  to  remain  in 
deposit  until  an  answer  came  from  Washington  to  the  representations 
uf  the  claimants.  On  the  10th  June  an  order  came  from  Washington, 
altering  the  tariff,  and  loft  nothing  to  be  desired. 

The  claimants  then  proceeded  to  the  custom-house  to  pay  tlieir 
duties,  according  to  the  improved  tariff.  The  collector  refused  to 
receive  such  duties  ;  but  demanded  the  duties  of  the  unnioditied  tariff 
of  the  United  States,  (of  the  31st  March,)  which  the  claimants  were 
compelled  to  pay,  viz : 


$11,106  58 
2,344  00 

""'8^2  58 

2,961  00 
^U33  58 


,50  ..^STMB»T  0.  CA^S  ««»U  THE 

1  worsted  goods,  amount  paid 
on  54  tales  woo«en  -d  «'^«^.|^^  ^.^^  ^^  ^^  ,,„, 
Would  have  paid,  under  XI 

^''''''   /        a  an  abatement  of  duty,  in  conse- 

^  ^  :  „  ^nt  levied  according  to 

law  ■  nevertheless,  as  the  modifications  .  ^^^^  ^^^^  ^,^„„^4  ^ 

Tggestion  of  the  claimants,  .  --a  hard     ^^^^^^^.^__  , 

th!  only  P»rt««  »<>*  =''^'""*       ,      ffiM  bv  F  M.  Dimond,  collector. 
'^Ilppear  tohe  in  O'*-,  and  cert,fi^  ^y^^^^^  ^,  „„t,„ite 

It  is  i' etty  certain  ^^<^^^'^'^^Zm  l>-e  allowed  the  claimant 
„naer,ind  the  case,  or  I  think  h  ywo„       ^^^,^     ^  therefore  aw^d 

from  a  large  invoice  o-"»*  f  ^^t^er  than  they  wonld  have  paid 
other  portion  mast  have  been  ia. 

nnder  the  Mexican  tariff.  „  i„led  in  conformity  with  the 

"these  duties,  as  before  stated  we.  h^^-fj^  ^„,  ,,,,,,ip,  in  the 
,,.  .,  and  it  is  only  the  ^^^,,  eommission  in  granting  any 

c«e  of  the  woolens  that  conUl  justity 

portion  of  the  claim. 


1 


I 


'i 


li 


CONVENTION    WITH   GREAT   BRITAIN. 


351 


6  58 
14  00 

5^58 


tw 


I 


ling  to 
e  at  the 

tie  docvi- 
loUector. 
Qot  quite 
slaimai^ts 
)re  award 
entatives, 
ee  dollars 

,n  goods,  I 
tton  gootls 
ities  on  the 
have  paid 

ty  with  the 
ships  in  the 
ranting  any 


KERFORD  &  JGNKIN. 


The  claimants  were  British  merchants  residing  in  Mexico,  and,  prior  to  the  war  between 
tlic  United  States  and  that  country,  had  ordered  goods,  designed  for  the  Mexican  market,  to 
bo  transmitted  by  the  over-land  route  to  Santa  Fc,  and  thence  to  the  interior  of  Mexico,  with 
a  right  of  drawback  of  duty,  as  provided  by  the  laws  of  the  United  States. 

Ou  the  arrival  of  the  goods  at  Philadelphia,  war  existed  between  the  United  States  and 
Mexico,  and  application  was  made  to  the  government  for  liberty  to  proceed  with  the  goods, 
with  right  of  drawback  as  before,  stating  the  great  hardship  of  a  refusal.  Special  permission 
was  {.'iven  "under  the  peculiar  circumstances  involved,  and  without  giving  rise  to  any 
inferences  as  regards  the  condition  of  Santa  FC\" 

Held  that  such  a  permission  was  a  mere  license  of  transmission  of  goods  to  the  border, 
with  full  notice  of  the  risks  arising  from  a  state  of  war,  and,  that  a  subsequent  necessary 
detention  of  a  caravan  conveying  the  goods  into  the  interior  of  Mexico,  by  an  armed  force 
invading  the  country,  until  afler  the  success  of  such  force  was  secured,  was  justifiable. 


The  claimants  are  British  merchants  resident  in  Zacatecas,  in 
Mexico,  and  had  been  many  years  engaged  in  trade  in  that  country. 

By  a  law  of  Congress,  of  March  3,  1845,  merchandize  was  author- 
ized to  be  exported  over  land  to  Canada,  and  to  Mexico,  via  Santa  Fe, 
with  the  benefit  of  drawback  on  duties. 

In  1846,  the  claimants  had  purchased  a  ([uantity  of  goods  in  Eng- 
land, designed  for  the  Mexican  trade,  and  adapted  especially  for  that 
market.  These  goods  they  had  ordered  to  h"i  shipped  to  Philadelphia, 
designing  to  take  them  by  the  over-land  route  to  Santa  Fe,  and  from 
thence  transport  them  to  the  interior  of  Mexico.  They  had  arranged 
to  have  mules  and  wagons  in  readiness  in  Mexico,  to  take  on  the 
goods  on  their  arrival. 

The  goods  arrived  in  Philadelphia,  in  June,  1846,  at  which  time 
war  existed  between  the  United  States  and  Mexico,  and  commercial 
intercourse  between  the  two  countries  was  stopped.  The  claimants, 
however,  made  earnest  application  to  the  government  to  be  permitted 
to  proceed  with  their  goods,  with  the  accustomed  allowance  of  draw- 


=  ;fi 


pi ; ! 


is  ^1 


III 


852 


ADJUSTMENT  OF   CLAIMS  UNDER   THE 


back  ;  and  representations  were  made  of  the  great  loss  which  would 
accrue  to  them  if  this  indulgence  was  not  granted.  The  request  was 
acceded  to  in  a  specij^  order,  in  which  the  Secretary  of  the  Treasury 
stated  that  *;;*was  granted  "under  the  peculiar  circumstances  involved, 
and  without  giving  rise  to  any  inferences  as  regards  the  condition  of 
Santa  F6,  or  to  act  as  a  precedent  inf  other  cases." 

The  %oods  were  forwarded  from  Philadelphia  early  in  July,  1846, 
and  arrived  at  Santa  Fe,  where  a  certificate  was  issued  for  the  return 
of  the  duties,  October  7,  1846.  Before  reaching  Santa  Fe,  the  cara- 
van transporting  the  goods  was  overtaken  by  a  military  detachment 
uncrer  Colonel  Price,  and  detained  by  him  ten  days.  They  were 
also  delayed  by  a  military  force  under  Captain  Walton.  On  the 
arrival  of  the  caravan  at  Santa  Fe,  General  Kearney  was  in  command, 
and  he  permitted  it  to  proceed  on  its  way  to  Chihuahua;  and  after- 
wards it  was  detained  by  Colonel  Doniphan,  who  had  command  of  the 
forces  then  proceeding  to  the  capture  of  the  city  and  province  of 
Chihuahua. 

The  caravan  was  kept  with  the  troops,  as  is  alleged,  some  six  or 
eight  months,  at  great  expense  arising  from  loss  of  mules,  consump- 
tion of  provisions,  damage  of  goods,  and  other  injuries.  At  length 
a  general  battle  was  fought  with  the  Spanish  forces  of  the  province, 
near  Chihuahua,  who  were  defeated,  and  the  city  and  province  wcro 
taken;  after  which  the  claimants  received  no  further  molestation. 

It  was  contended  that  the  detention  of  the  claimants  was  justifiable 
l)ecau8e  they  were  proceeding  directly  to  the  enemy's  country  with  a 
full  knowledge  of  the  numbers  and  design  of  the  American  forces. 
They  liad  also  merchandise  which  would  be  a  valuable  assistance  to 
■the  Mexicans,  and  on  which  the^duties  to  be  paid  would  amount  to  a 
larse  sum. 


St 
-mi 


The  duties  paid  in  the  United  .^tates,  forfWiich  they  received  a 
drawback,  were  §5o,108.  The  duties  in  Mexico  would  be  a  much 
larger  amount. 

It  ai)pears  that,  notwithstanding  all  tlie  detention,  the  goods  sold 
so  that  the  claimants  realized  a  large  profit,  though  much  less  tliau 
they  would  have  done  had  tliere  been  no  delay. 

Hannen,  agent  and  counsel  for  Great  Britain. 

Thomas,  agent  and  counsel  for  the  United  States. 


of 


III   III: 


• 

rcg 

c 

•1 

ill  a 
incr 
the 

1 

nee 

1 

ap( 

'1' 


CONVENTION  WITH   GREAT   BRITAIN. 


353 


iHTOUld 

it  was 
jasury 
olved, 
tion  of 

,  1846, 
I  return 
tie  cara- 
icbment 
ey  were 
On  the 
)nimand, 
^nd  after- 
,nd  of  the 
•ovince  oi 

nie  six  or 

consump- 
At  length 
f  province, 
,vince  were 
station. 
8  justifiaWo 
Lntry  with  a 

ican  forces, 
assistance  to 

amount  to  a 

y  leceivetl  a 
a  l)c  a  much    , 

lie  goods  soul    | 
inch  less  than   | 


m 


HI 


Thomas,  Counsel  and  Agent  for  the  United  States  : 

This  is  a  claim  of  Messrs.  Kerford  &  Jenkin,  merchants,  of  Zaca- 
tecas,  Mexico,  who  were  domiciled  in  that  city  and  carried  on  trade 
there,  during  the  war  hctween  the  United  States  and  Mexico.  The 
claim  is  for  $300,000,  damages  alleged  to  have  been  experienced  by 
the  claimants  in  consequeace  of  the  detention  of  their  caravan  of  goods 
by  Colonel  Doniphan,  between  Santa  Fc  and  Chihuahua,  in  1846. 

The  declaration  or  memorial  of  the  claimants  states  that  they  are 
British-born  subjects,  but  that  they  have  resided  and  been  merchants 
at  Zacatecas  during  the  last  eighteen  years. 

I  shall  oppose  the  allowance  of  this  claim  on  two  grounds: 

1st.  The  commission  has  no  jurisdiction  of  the  case,  inasmuch  as 
the  claimants  were  domiciled  in  Mexico  during  the  war,  and  by  the 
law  of  nations  were  subjects  of  that  country :  and 

2d.  If  they  had  the  right  to  appear  here  as  claimants  against  the 
United  States,  they  have  no  just  or  legal  ground  of  complaint. 

Every  person  domiciled  in  the  enemy's  country  is  regarded  by  the 
law  of  nations  as  a  subject  of  that  country.  Kerford  &  Jenkin  bi-ing 
domiciled  in  Mexico  during  the  war,  were  not  "British  subjects" 
in  the  sense  in  which  these  terms  are  used  in  the  convention,  and 
hence  have  no  right  to  aj)pear  before  this  commission. 

International  law  does  not  enter  within  a  State  to  ascertain  who 
enjoys  the  municipal  rights  in  a  higher  or  lower  degree,  but  it  is  out- 
side of  all  nations,  and  regards  every  person  as  a  member  of  that 
society  in  which  he  is  found. 

This  is  the  lule  for  the  intercourse  of  nations  in  y-'^ace  as  well  as  in 
war. 

The  «iUostion  now  before  you  is,  however,  oac  v.hich  arose  in  time 
of  war,  and  we  shall,  thovefore,  only  be  con?crned  with  the  law  in 
regard  to  belligerents. 

On  this  point  Chancellor  Kent  says:  "Ir'a  person  has  a  settlement 
in  a  hostile  country  by  the  maintenance  of  a  commercial  establish- 
inont  there,  he  will  be  considered  a  hostile  character,  and  a  '-^ubject  of 
the  enemy's  country  in  regard  to  his  commercial  transactions  con- 
nected with  that  establishment.  The  position  is  a  clear  one,  that  if 
a  person  goes  into  a  foreign  country  and  engages  in  trade,  he  is,  by 

28 


Vii 


8i'i 


^^*  wedaracrchantof  that  country,  an* 

the  la.  of  n,>tio„B,  to  be  oon-derei  ^  -      ^^^^^^^^  ^^  ,^„^^;,^  „, 
,  subject  to  all  cWU  P»n-  ;;]' t  xetain  the  privilege,  of  a  neutral 
tral,  and  he  cannot  he  i:"°'"'2i°        ation  in  an  enemy's  country. 

eha;aetcr  during  his  res.den^e  -  -    .^^„,,  „,,,  Uving  in  Me-co 
Great  Britain  «a«  "''»  'f '  J^  °  ,„,,  recording  to  the  authority  o 

then  at  .ar  with  *eUmted  Spates    »  ^^^  ^^^^^  , 

Kent,  they  tooU  *!>-»' --^^^"f  that  character  and  come  V>e,e 
n.ade  they  cannot  du^s    then«e^  ^^^,^  ^^  ^„j,tt  V    If 

,„d  claim  a  right  to  tha   -'"»'';  "^^^       „,,  eountry  of  the  hell.ge- 
The  to  the  advantage  of  any  one  to  a^  op  ^^^  ^^^^^.^^  ^^^^^,,, 

,ent.henmsttake  al»o  ««  d^'^-^.t  fo,  all  commercial  pur- 

Ch    cellor  Kent«ia,.  '''^^  XT^^---'^  *°  *"■=  ^^  1 

Les  the  domicil  of    the  Vf^'^Zl^,,^  has  been  repeatedly  and 

S,beco,ne«  *«*««' f'^"™frthe  United  States."     I  have. 

explicitly  admitted  in  the  ^^^  ..Hamiralty  courts,  shown  to  th. 

in  another  case,  by  c,tat>ons  from  tl.e  .^  ^__^^^^^  ^^y^ 

ommission  that  the  »-; '^^  ™;^;:  her  Majesty's  agent  refuses 

even  a  single  departure  from   t  and  5^  ^^^^  ^^^,^,„„,.     i 

tl  acknowledge  the  appl  cab.U  y  or  »*    J,.,„,  ,,  ,imost  ti>e  only 

had  suppo.ed  that  Amer«^us  w^^^    he        .^^^^^^^  ^ 

insubordinate  people,  but  ";°",„,^^^  ,„  as  we  are  in  America.    The 

even  members  of  the  bar  'l-^-^^^^^^,  „„,  .hide  by  the  deo.s.on  of 

eounselforher  Majesty  s  ^ove  ■  me  't  „f  hissuper.or, lord 

hi,  own  courts-,  and  '--  <^'-^,.,,  „„„  has  recently  announced 
nurenaon,  Secretary  ot  i'oiei^u 

lh.w  of  natrons  on  this  vern-t^  _^^  ^.^^^      hat  would 

Having  bc^n  asUed  hy  he.  »*7  .  j,^,,  ,„  B„sHia  in  the  event  of 
he  *:  co;dition  of  British  ^^f;>;^^^:^l,  ,.aotiee  of  nations,  a 
„ar.  Lord  Clarendon  says:       By  tb  ^^^^  ^^    ,,,„h, 

lell  gerent  has  a  right  to  --"^  '  ^^^^^  ,„,„„„reial  estabhshments 
•„  a'hostile  country,  or   -'-;;7*rt,  „,,,„! ,  allies,  enem.es,  0 
therein,  whether  these  people  be  by  "  ^i,;,,,  ,  contend,  and 

rv-^ubjects."     '^^^^'^^Z:^.^^^^^^-^^^ 
in  conformity  with  ,t  an  Amc.«  ^^^^^  ^^^  „,arded  b) 

this  war  is  an  enemy  oi  Or  a  Br  tam,  ^^^^^^  ^^^^  ^^  ^,  ,„„. 

t^;  court  in  England.     H,  '«"  '^.^^l^,  declare  that  Americans, 
:;LedasBritishsubjeets,youw«p.^c^J__^^  ^^^^^^.  ^^^^^^^ 

domiciled  in  Russ.a,  w,ll  not 


CONVENTION   WITH   GREAT    BRITAIN. 


355 


and 

neu- 
sutral 
.try." 
exico, 
rity  of 
leace  is 
le  bere 
ed.    H 
bellige- 
aracter. 

lial  pur- 
place  of 
edly  and 

I  have, 
n  to  this 
I  without 
it  refuses 
isions.     1 
t  the  only 

there  are 
rica.   The 
decision  oi 
erior,Lord 

announced 

^rhat  would 
the  event  of 

nations,  a 

who  reside 
ahlishments 

enemies,  or 
contend,  and 
Russia  during 

regarded  hy 
are  to  he  con- 
at  Americans, 

hv  the  peace 


wliich  may  be  made.  The  American  may  bring  forward  hereafter  a 
claim  for  injurieif  done  to  him  and  his  property  in  Kussia  by  Great 
Britain  ;  and  when  some  future  commission  shall  be  organized  to  ad- 
judicate claims  between  the  United  States  and  Great  Britain,  this 
man,  who  was  in  Russia  during  the  war,  giving  his  money,  his 
spirit,  and  his  industry,  to  maintain  the  war  against  Great  Britain, 
may  i)rcsent  himself  before  that  commission  and  say,  ' '  when  you 
made  peace  Avitli  Russia  you  did  not  settle  my  claims,  you  settled  the 
claims  of  Russian  subjects  against  England,  but  I  am  an  American 
citizen,  and  I  claim  indemnity  for  injuries  done  to  me  and  my  property." 

To  admit  the  claim  of  Kerford  &  Jenkin,  would  establish  the  prin- 
ciple that  would  embrace  the  case  I  have  stated,  and  I  should  think 
her  Majesty's  government  would  be  the  last  to  assent  to  it.  In  a  pre- 
vious discussion  of  this  principle,  in  the  case  of  the  Laurents,  I  cited 
several  cases  on  this  point  from  Lord  Stowell ;  and,  though  it  may  not 
be  necessary,  I  would  now  refer  to  what  he  says  in  the  case  of  the  Emb- 
(len,  1st  Robinson's  Reports.  In  speaking  of  a  foreign  merchant  who 
had  carried  on  trade  in  Holland,  he  observes  that  "  a  Prussian  born 
subject,  by  engaging  in  trade  for  ten  years  in  Amsterdam,  had  become 
ii  perfect  Dutcliman.  "  These  claimants  were  engaged  in  trade  during 
eighteen  years  in  Mexico,  and  the  law  of  nations  must  have  wrought 
a  like  change  in  their  national  character.  This  view  of  the  law  of 
nations  is  fully  sustained  by  the  decisions  that  are  now  almost  daily 
transpiring  at  Doctors'  Commons. 

The  present  war  between  the  allies  and  Russia  has  already  given 
rise  to  several  cases  which  determine  anew  this  question.  I  find  the 
judgment  of  Dr.  Lushingtou,  in  the  case  of  the  Abo,  directly  to  this 
point.  The  learned  doctor  says  :  "  A  claim  has  been  set  up  on  behfilf 
of  a  genf[.,man  stating  himself  to  be  a  British  subject,  resident  at 
Cadiz;  hut,  as  far  as  every  rule  of  law  can  be  applied,  this  gentleman 
holds  a  Spanish  national  character,  and  not  that  of  a  British  subject, 
because  it  is  a  very  just  principle  that  in  time  of  war  a  person  is  con- 
sidered as  belonging  to  that  n.ation  where  he  is  resident  and  where  he 
carries  on  his  trade." 

But  in  tlie  case  of  the  Aina,  which  will  be  found  reported  in  the 
Jurist  of  the  5th  of  August,  this  distinguished  admiralty  judge  is  even 
more  emphatic  and  clear  in  presenting  this  view  of  the  law.  On  tha 
question  as  to  the  national  character  of  the  claimant,  whether  he  is 


m 


356 


ADJUSTMENT  OF  CLAIMS   UNDER   THE 


iiill 


to  be  considered  as  an  enemy  or  a  neutral,  Dr.  Lusliington  observes : 
"  It  is  stated  tbat  he  is  a  citizen  of  the  Hanse  Tow*  of  Lubeck,  and 
consul  of  his  Majesty  the  King  of  the  Netherlands  at  Helsingfors, 
Finland,  in  the  empire  of  Russia.     Upon  this  I  can  put  but  one  con- 
struction— that  he  is  a  resident  in  Finland,  and  carrying  on  his  busi- 
ness there.     /  take  it  to  he  a  point  without  controversy,  that  when  a 
neutral,  after  the  commencement  of  war ,  continues  to  reside  in  the  enemy's 
country  for  the  purposes  of  trade,  he  is  considered  as  adhering  to  the 
enemy,  and  as  disqualified  from  claiming  as  a  neutral  altogether. ' '     If 
his  character  of  neutral  is  destroyed,  if  he  is  a  belligerent,  the  author- 
ities declare  that  he  must  take  the  disadvantages  as  well  as  the  ad- 
vantages of  the  country  of  his  adoption.     There  never  could  be  a 
ti  rmiuation  to  a  war  and  its  consequences,  if  the  various  individuals 
of  foreign  origin  who  in  this  migrating  age  choose  to  take  up  their 
.lomicil  in  the  enemy's  country  could  from  time  to  time  bring  forward 
claims  that  arose  during  the  war,  long  after  peace  was  made  and  all 
claims  settlad  by  the  belligerent  governments. 

The  agent  for  her  Majesty's  government  has  observed  that  these, 
and  other  cases  which  I  have  heretofore  cited  from  the  admiralty 
courts,  relate  to  questions  of  property,  and  that  no  direct  adjudication 
has  been  made  upon  the  national  character  of  the  parties.  In  this 
assertion  her  Majesty's  agent,  I  venture  to  say,  is  greatly  in  error. 
The  right  of  property  has,  no  doubt,  been  the  cause  of  the  litigation  ; 
but,  in  order  to  determine  that  right,  it  has  been  necessary  to  fix  the 
national  character  of  the  parties  claiming  it,  and  this  has  uniformly 
been  settled  by  the  court  of  admiralty  before  determining  the  right  of 
property. 

The  identical  construction  of  the  words  "  British  subject,"  for  which 
I  contend,  was  settled  by  the  privy  council  in  Drummond's  case,  re- 
ported  in  2d  Knapp;  and  that  decision  is  corroborated  by  the  Supreme 
Court  in  the  case  of  I'v  Pirarro. 

Tin's  court  was  called  U])on  to  say  -.vhat  was  meant  by  the  term 
"subjects  of  his  Catholic  Majesty,"  used  in  a  treaty  between  the 
United  States  and  Spain  ;  and  the  doctrine  held  in  Drummond's  case 
by  the  admiralty  court,  and  by  every  British  publicist,  was  fully  sus- 
tained. It  was  hold  that  these  words  must  be  interprctjd  by  the  law 
of  nations.     In  delivering  the  opinion  of  the  court,  Juuge  Story  said, 


i 


F 

le 


wl 


CONVENTION  WITH  GREAT  BRITAIN. 


357 


■ves : 
,  and 
^fors, 
5  con- 

busi- 
hen  a 
aeniy's 

to  the 
.."  If 
mthor- 
fche  ad- 
d  be  a 
ividuals 
ip  tbeir 

forward 
1  and  all 

lat  these, 
idmiralty 
udication 
In  this 
in  error, 
igation ; 
o  fix  the 
uniformly 
le  right  of 

for  which 

8  case,  rc- 

le  SuiKcme 

y  the  term 
letween  the 
mend's  case 
,s  fully  sus- 
hy  the  law 
Story  said, 


II 


emphatically,  "that  a  person  domiciled  in  a  country,  and  enjoying 
the  protection  of  its  sovereign,  is  deemed  a  subject  of  that  country." 
The  British  agent  has  called  my  attention  to  Genesse's  case,  and 
desires  me  to  reconcile  that  judgment  with  the  construction  I  have 
put  on  the  other  decision  of  the  privy  council.  That  will  not  be  a 
difficult  mattifr ;  before  entering  upon  the  subject,  however,  I  must 
express  my  regret  that  the  British  commissioner,  in  delivering  his 
opinion  on  this  principle  in  the  Laurents  case,  should  have  adopted, 
as  he  must  have  done  without  examination,  the  view  which  her  Majes- 
ty's agent  thought  proper  to  take  of  Genesse's  case ;  for  it  appears  to 
me  impossible  that  an  unprejudiced  mind  can  fail  to  admit  that  it  is 
in  entire  harmony  with  the  cases  I  have  heretofore  cited. 
Genesse's  case  is  this  : 

In  1793  Genesse  was  the  chief  clerk  of  Boyd  and  Kerr,  British 
bankers  established  in  Paris.  They  owned  certain  rentes  viageres, 
(life  annuities,)  which  stood  in  the  name  of  Genesse.  The  books 
and  papers  of  this  house  were  seized,  and  Genesse  with  them.  The 
French  government  confiscated  the  property,  and  executed  Genesse. 
Boyd  and  Kerr  claimed  compensation  under  the  treaty  granting  in- 
demnity to  British  subjects  for  private  property  seized  and  appropri- 
ated, and  it  was  allowed  by  the  privy  council  on  the  ground  that  they 
had  returned  to  London,  and  were  living  luider  the  rule  and  govern- 
ment of  Great  Britain  at  the  time  of  the  confiscation. 

In  proof  of  the  correctness  of  this  decision,  the  very  decree  which 
pronounced  sentence  of  death  on  Genesse  gives,  as  a  reason  for  his 
condemnation,  that  he  was  associated  with  these  persons,  Boyd  and 
Kerr,  who  were,  it  was  alleged,  then  in  London.     It  says  he  was  con- 
demned for  being  a  member  of  that  "execrable  conspiracy,  directed 
and  plotted  by  Boyd  and  Kerr,  English  bankers,  who  are  enjoying  in 
London  impunity  for  their  crimes. "     The  British  agent  and  the  com- 
missioner have  both  assumed  that  those  persons  were  domiciled  in 
France ;  whereas  this  decree  itself  proves  the  contrary.     They  had 
left  Paris,  and  had  resumed  their  allegiance  to  Great  Britain,  before 
the  confiscation  took  place.     Sir  William  Scvitt,  in  the  cases  of  the 
Indian  Chief  and  President,  held,  that  the  moment  a  citizen  even 
turns  his  face  towai'd  home,  aninio  revertandi,  his  domicil  reverts. 
Boyd  and  Kerr  were,  therefore,  redintegrated  subjecis  of  Great  Britain 
when  their  property  was  confiscated,  actually  rendering  allegiance, 


;  l! 


>  ii* 


■:<n:«^.*- 


Iy 


(ii 


358 


ADJUSTMENT  OF  CLAIMS   UNDER   THE 


and  camo  within  the  provisions  of  the  treaty.  It  is  manifest  that  this 
case  is  perfectly  consistent  with  the  other  cases  cited ;  and  it  is  there- 
fore of  no  authority  to  support  the  pretension  of  Kerford  and  Jenkin  to 
bo  regarded  here  as  British  subjects. 

But  it  is  contended  that  the  claimants  liad  a  license,  and  upon  this 
much  stress  has  been  laid.  Supposing  them  to  have  hm\  a  license,  and 
that  its  provisions  had  not  been  complied  with  by  the  authorities  of 
the  United  States — if  the  doctrine  which  I  have  maintained  be  correct, 
they  cannot  come  here  to  redress  any  wrong  done  under  that  license. 
If  any  government  could  complain,  it  would  be  Mexico;  but  tlie  treaty 
of  peace  settled  all  the  claims  of  her  subjects  upon  the  United  States, 
and  if  this  was  not  included  it  is  the  fault  of  Mexico,  and  to  that 
government  the  claimants  must  resort  for  redress.  Although  I  have 
raised  this  objection  to  the  jurisdiction,  it  will  appear  in  the  course 
of  the  argument  that  1  have  not  done  so  to  avoid  any  just  or  legal 
demand  against  my  government,  as  there  is  a  perfect  defence  to  this 
claim  upon  the  merits  ;  and  to  this  I  shall  now  proceed  as  my  second 
point. 

In  1843  the  United  States  passed  a  law  authorizing  the  exportation 
of  goods  across  the  country  to  Mexico  and  to  Canada,  with  the  benefit 
of  drawback ;  and  under  that  laAv  this  permission,  dignified  with  the 
name  of  a  license,  was  granted.  In  June,  1846,  application  was  made 
to  the  Treasury  De])artment,  by  the  agent  of  these  claimants  in  Phila- 
delphia, to  be  allowed  to  export  from  Independence  to  Santa  Fe,  with 
benefit  of  drawback,  nine  hundred  and  eighty-six  packages  of  goods, 
ordered  and  shipped  prior  to  the  declaration  of  war.  The  Secretary 
of  the  Treasury  directed  the  collector  at  Philadelphia  to  grant  the 
application,  by  giving  to  the  parties,  as  their  authority,  a  copy  of  the 
Secretary's  letter  of  the  10th  of  June  of  the  same  year  to  the  collector 
of  New  York,  in  answer  to  a  like  request.  That  letter  from  the  de- 
partment was  in  these  words :  "Sir:  Ui)on  recommendation  of  the 
application  rcade  by  Messrs.  P.  Harmony,  Nephews  &  Co.,  referred 
to  in  your  letter  of  the  1st  instant,  to  be  allowed  to  export,  in  pursu- 
ance of  the  act  of  the  3d  March,  1848,  with  benefit  of  drawback,  to 
Santa  Fe,  certain  goods,  specially  imported  and  exclusivoly  designed 
tor  said  trade,  the  department  has  concluded  to  allow  such  exportation 
under  the  peculiar  circumstances  involved,  and  loithout  [living  rise  to 
any  inference  as  regards  the  condition  of  Santa  Fe,  or  to  act  as  a^'e- 
cedent  in  other  cases. 


sij 
eij 

dI 

ml 

tlif 

81 


CONVENTION    WITH   GREAT   BRITAIN. 


359 


lat  this 
8  thero- 
3nkin  to 

pon  this 
nse,  and 
critics  of 
3  correct, 
t  license, 
ho  treaty 
ed  States, 
d  to  that 
ffh  I  have 
the  course 
st  or  legal 
nee  to  this 
my  second 

jxportation 
the  henefit 
?d  with  the 
n  was  made 
ts  in  rhila- 
ita  Fe,  with 
es  of  goods, 
\e  Secretary 
,0  grant  the 
V  copy  of  the 
the  collector 
from  the  de- 
ation  of  the 
Co.,  referred 
)vt,  in  pursii- 
drawhack,  to 
voly  designed 
■h  exportation 
ifiving  rise  to 
^^adasapre- 


This  is  in  no  proper  sense  a  license,  but  a  mere  permission  to  export 
goods,  and  a  relaxation  of  the  rigors  of  war  by  the  government,  be- 
cause it  believed  tlie  good  ■  had  been  purchased  under  tlio  inducement 
held  out  by  the  law  of  1843. 

The  agent  for  her  Majesty's  government  contends  that  the  term 
''Santa  ¥e  trade,"  use'd  in  tbe  claimants'  application,  meant  the  car- 
rying of  goods  from  Independence  via  Santa  Fe  to  Chihuahua.  This 
may  be  true,  but  the  Secretary  of  the  Treasury  did  not  use  those  terms ; 
he  limited  his  permission  "  /o  Santa  Fe,"  and  he  moreover  warned  the 
parties,  at  the  close  of  the  permission,  by  saying  in  eiTect  that  ho  could 
give  no  guaranty  as  to  what  the  parties  might  expect  on  reaching  that 
place.  It  afterwards  appeared  that  General  Kearny  was  then  raising 
an  expedition  to  invade  Mexico  by  way  of  Santa  Fe.  The  govern- 
ment was  under  no  obligation  to  proclaim  to  the  world,  nor  to  these 
claimants,  that  this  expedition  was  being  organized,  but  they  were  put 
on  their  guard  by  the  Secretary  of  the  Treasury ;  he  said  ''he  gave  no 
assurance  as  to  what  might  be  the  condition  of  Santa  Fe." 

When  the  claimants'  caravan  reached  that  place,  the  United  States 
forces  had  taken  possession  of  the  town.  General  Kearney  was  in  com- 
mand, and  the  claimants  allege  that  he  told  them  :  "You  wish  to  go  on 
to  Chiiiuahua,  tlie  road  is  open ;"  "you  are  now  in  Mexico,  and  we  have 
no  further  concern  with  you."  Shortly  after  this,  General  Kearney 
left  Santa  Fe  and  proceeded  on  his  march  to  California.  In  a  lew  days 
Colonel  Doniphan  arrived  at  Santa  Fe  with  his  forces,  and  very  soon 
thereafter  started  on  his  expedition  to  Chihuahua,  whither  the  caravan 
had  already  gone.  This  caravan  was  going  directly  to  the  city  upon 
which  the  army  was  moving.  It  was,  in  fact,  a  blockaded  route,  and 
to  contend  that  this  caravan  had  any  right  whatever  to  precede  the 
army,  would  be  to  contend  that  the  usual  traders  have  the  right  to 
enter  an  invested  city.  There  were  eighty  men  in  the  caravan,  any 
one  of  whom  might  have  acted  as  a  spy  ;  and  they  were  conducting  to 
the  enemy  a  large  quantity  of  goods  and  provisions,  and  the  preten- 
sion is  set  up  that  they  should  be  allowed  to  go  on,  because  the  gov- 
ernment had  permitted  them  to  export  goods  to  Santa  Fe  !  Colonel 
Doniphan's  expedition,  composed  of  not  more  than  a  thousand  effective 
men,  had  to  traverse  a  wilderness  of  a  thousand  miles  in  extent, 
throughout  which  there  was  no  wood,  little  water,  and  nothing  to 
sustain  either  animals  or  men. 


I 


!  *! 


ili; 


^^ft^^^&acAtf 


360 


ADJUSTMENT  OF  CLAIMS  UNDER   THE 


'if-    ■•■■' 


:' 


The  circumstances  demanded  the  greatest  caution  to  prevent  the 
loss  of  the  army,  and  yet  these  claimants  demanded,  as  a  right,  the 
liberty  to  go  on  and  furnish  the  enemy  with  the  moans  and  informa- 
tion requisite  to  insure  liis  destruction.  No  British  commander  would 
tolerate  such  a  pretension,  and  it  is  amazing  to  me  that  it  should  find 
an  advocate  in  any  profession.  We  imiy  easily  conceiv',,  fvu  illustra- 
tion, in  the  present  war,  which  will  show  the  unreasonableness  of  the 
claimants'  demand.  Let  us  suppose  that  Enjjland  bordered  upon  the 
empire  of  Russia,  and  thiit  tliere  existed  "  the  Odessa  trade,"  whicli 
had  been  heretofore  carried  on  by  American  citizens  doii'ioiled  in  8e- 
bastopol,  and  that  tlie  British  government  had  granted  them  a  per- 
mit to  export  goods  across  the  country  t  )  Odessa.  When  the  parties 
arriveil  at  Odessa,  they  found  General  Kearney  in  command  of  that 
city^  and  he  says,  "  you  are  now  in  the  Russian  territory,  the  road  to 
Sebastopol  is  open  to  you."  But  before  they  reacli  that  place  Lord 
Raglan  arrives  in  the  Crimea,  and  on  his  way  to  Sebastopul  overtakes 
the  caravan.  He  is  marching  on  that  place  and  going  to  besiege  it. 
According  to  the  principle  contended  for  by  her  Majesty's  agent, 
Lord  Raglan  must  send  on  this  caravan  into  Sebastopol,  and  let  the 
enemy  be  notified  tliat  lie  is  coming,  the  nature  of  his  forces,  and 
everything  the  Russians  may  desire  to  know  about  the  invading  ex- 
pedition. Tliere  is,  I  maintain,  no  principle  that  has  ever  been  acted 
upon  by  aay  oorantander  of  an  army  that  would  require  Lovd  Raglan 
to  take  such  a  course  as  that,  and  yet  this  is  the  very  case  before  this 
commission.  The  agent  for  her  Majesty's  government  has,  in  his 
argument,  contended,  in  effect,  that  under  such  circumstances  the 
caravan  ought  to  be  sent  into  Sebastopol.  I  repeat  that  neither  tho 
laws  of  war  nor  any  of  the  rules  which  regulate  the  intercourse  of 
nations  call  for  any  such  proceeding  on  the  part  of  the  commander  of 
the  British  or  the  American  exj^edition. 

The  case  of  Harmony  vs.  Mitchell  has  been  relied  on  as  being  similar 
to  the  present  one.  In  that  case  the  plaintiif  had  received  the  same 
permission  to  export  goods,  and  had  followed  the  army  without  moles- 
tation into  Chihuahua,  but  the  country  was  then  under  complete 
subjection,  and  all  danger  had  passed.  It  was,  in  fact^  in  the  possession 
of  the  United  States.  The  seizure  and  confiscation  of  the  plaintiff"s 
goods  by  Colonel  Mitcliell  was  therefore  declared  by  the  Supreme 
Court  to  have  been  illegal,  because  there  was  no  longer  any  danger  of 


h 


■event  the 
right,  the 
t\  informa- 
ndcr  would 
should  find 
Hu  illustra- 
ouesfl  of  the 
ed  upon  the 
idc,"  which 
iciled  in  Se- 
them  a  per- 
1  the  parties 
aiand  of  that 
y,  the  road  to 
it  place  Lord 
)pul  overtakes 
;  to  hesiege  it. 
jesty's  agent, 
3I,  and  let  the 
lis  forces,  and 
,e  invading  ex- 
jver  heen  acted 
c  Lord  Raglan 
case  hefore  this 
mt  has,  in  his 
cumstances  the 
Aiat  neither  tho 
e  intercourse  of 
te  commander  ot 

as  being  similar 
iceived  the  same 
y  without  moles- 
under  complete 
in  the  possession 
of  the  plaintiff's 
\)y  the  Supreme 
,rer  any  danger  of 


W^ 


CONVENTION   WITH   GBBAT  BRITAIN. 


361 


his  carrying  supplies  or  information  to  the  enemy  ;  and  Chief  Justice 
Taney,  in  delivering  tlii'  opinion  of  the  court,  pointed  out  the  difference 
between  the  two  cascn.  In  the  case  before  .the  commiBsionera  there 
was  no  confiscation  of  the  claimants'  property:  it  was  a.  detention 
merely  which  took  place  before  the  country  was  conquered  and  while 
the  danger  wan  immitient,  and  which  was  denuinded  by  the  necessitioH 
of  the  war  and  auth(»ri/ed  by  the  rules  which  regulate  tlio  conduct  of 
armies.  But  if  the  cases  were  the  same  in  principle,  as  has  been 
alleged,  why  did  not  the  claimants  seek  the  same  remedy?  They 
might  have  sued  the  commauderof  that  expedition  in  the  courts  of  the 
United  States.  Tiie  Constitution  has  expressly  given  jurisdiction  in 
the  case  of  an  alien  suing  a  citizen,  and  the  claimants  could  have  had 
the  judgment  of  the  same  court.  The  omi  ion  to  avail  themselves  of 
this  remedy  is  very  strong  evidence  that  i  lid  not  think  the  cases 
the  same  in  i)rinciple. 

It  has  been  asserted  by  the  British  agent  that  licenses  are  to 
be  construed  with  the  utmost  liberality.  This  is  a  new  doctrine, 
and  I  venture  to  say  he  can  produce  no  authority  in  support  of 
it.  Sir  William  Scott  entertained  an.  entirely  different  opinion,  and 
so  expressed  himself  in  the  case  of  the  Cosmopolite:  "Licenses," 
he  says,  "being  high  acts  of  sovereignty,  they  are  necessarily  .sinc^i 
Juris,  and  must  not  be  carried  further  than  the  intention  of  the  great 
authority  which  grants  them  may  be  supposed  to  extend.  It  is  abso- 
lutely essential  that  that  only  shall  be  done  which  the  grantor  intended 
to  permit ;  whatever  he  did  not  mean  to  permit  is  absolutely  inter- 
dicted, and  the  jmrty  wlio  uses  the  license  engages  not  only  for  fair 
intentions  but  for  an  accurate  interpretation  and  execution."  It 
cannot  be  said  that  the  United  States  government  intended,  by  its 
permission,  to  give  the  claimants  protection  in  the  enemy's  country. 
It  was  designed  to  permit  them  to  carry  their  goods  to  Santa  Fe,  and 
nothing  more.  During  war  the  law  of  nations  prohibits  all  trade  with 
the  enemy  ;  and  the  permit  to  the  claimants  to  export  their  goods  was 
an  assumption  of  a  state  of  peace  to  that  extent,  an  exception  to  the 
rule  of  law,  and  must  be  construed  strictly.  And,  as  has  been  usual 
in  a  state  of  peace,  when  the  goods  reached  Santa  Fe  the  claimants 
received  a  certificate  of  exportation,  and  upon  that,  in  less  than  a 
month  afterwards,  the  duty  was  returned  to  their  agent  at  Philadelphia 
l>y  the  collector  of  that  port.     Here  the  transaction  was  closed,  the 


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ADJUSTMENT  OF  CLAIMS  UNDER  THE 


obligation  of  the  United  States  ceased,  and  the  property  then  became 
mixed  with  that  of  the  enemy.*' 

In  conclusion,  I  would  observe  that  it  is  irregular  in  the  proceedings 
of  judicial  tribunals  to  consider  the  merits  of  a  case  before  determining 
whether  that  tribunal  has  authority  to  decide  it.  I  am  not  unwilling, 
however,  that  the  umpire  shall  look  at  the  merits  of  tHe  claim,  for 
even  if  it  be  regarded  within  the  jurisdiction  of  the  commission,  I 
conceive  that  I  have  shown  that  it  is  unsupported  by  law,  and  has  no 
foundation  in  justice.  ^^ 


» 


.-  ■Mf'-^ 


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t 


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---■*■'  ,.»..,? 


CONVENTION   WITH  GBBA.T  BRITAIN. 


863 


I  became 

)ceeding8 
ermining 
nwilling, 
claim,  for 
mission,  I 
nd  has  no 


Upham,  United  States  Commissioner :  t  . 

The  abstract  of  the  case  drawtf  up  presents  fully  all  the  particulars 
necessary  for  its  consideration.  There  is  no  doubt  that  the  detention 
of  the  caravan,  caused  by  the  military  forces,  which  were  also  proceed- 
ing to  the  same  point  in  the  enemy's  country,  was  a  serious  damage 
to  the  claimants.  There  is  good  reason  to  believe  the  damage  would 
have  been  far  greater,  however,  had  no  permission  been  granted  to 
proceed  with  the  goods  beyond  Philadelphia,  as  they  were  ordered 
especially  for  the  Mexican  roarket.  ^- 

The  permission  given  was  designed  for  the  relief  of  the  claimants  on 
account  of  the  partici^r  circumstances  of  the  case,  and  was  so  received. 
Injustice  has  been  done  to  the  government  by  representing  it  as  a 
pledge  or  guaranty  that  the  caravan  should  proceed  unmolested  by  the 
war  existing  between  the  two  countries ;  but  the  exact  reverse  of  this 
is  the  fact.  The  goods  were  allowed  to  proceed,  with  the  benefit  of  a 
drawback  for  the  return  of  duties,  but  they  were  to  incur  all  the  risks 
dependent  on  the  condition  of  the  two  countries  on  their  arrival  at 
Santa  Fe,  on  the  frontier,  and  in  their  further  progress  to  the  interior 
of  Mexico.  *  ^ 

It  was  specially  stated  in  the  permit  that  it  was  granted  on  account 
of  "  the  peculiar  circumstances  of  the  case,  and  without  giving  rise  to 
any  inferences  as  regards  the  condition  of  Santa  Fe,  or  to  act  as  a  pre- 
cedent in  other  cases." 

Its  evident  purport,  as  I  have  stated  it,  could  not  have  been  misun- 
derstood. 

The  sole  question,  then,  which  arises  in  the  case  is,  whether  the 
subjection  of  these  parties  to  the  incidents  attending  a  state  of  war  in 
Mexico  constitutes  a  just  ground  of  claim  against  the  United  States. 
It  is  not  denied,  I  believe,  that  their  detention  was  eminently 
demanded  as  a  precautionary  measure  for  the  security  of  the  American 
troops .  The  American  forces  were  then  proceedin g  on  a  very  diftsperate 
adventure  into  the  heart  of  the  enemy's  country,  against  a  force  far 
greater  than  their  own,  and  for  the  capture  of  an  extensive  province, 
having  a  large  population. 

Their  sole  security  depended  on  the  want  of  knowledge,  on  the  part 
of  the  Mexicans,  of  the  number  and  condition  of  the  men  sent  against 
them.    The  claimants  were  also  taking  to  the  very  forces  arrayed 


1^ 


864 


ADJUSTMENT  OP  CLAIMS  UNDBB  THE 


against  the  Americans  merchandise  of  immediate  use  to  those  forces, 
and  upon  which  the  enemy  would  receive  at  once  a  large  amount  of 
material  aid  in  the  duties  to  be  levied  upon  the  goods. 

The  detention  of  the  claimants'  caravan,  under  these  circumstances, 
was  evidently  a  military  necessity. 

The  claimants  voluntarily  incurred  the  risk  of  this  liability  with  the 
permission  to  do  so,  as  a  special  favor  from  the  American  government, 
and  with  full  warning  as  to  the  contingencies  to  which  they  might  be 
subjected.^  '  ■  m^ 

The  claim,  then,  which  is  made  in  this  case  comes  with  a  bad  grace 
from  these  parties.  Had  the  goods  been  confiscated  after  they  were 
permitted  to  proceed  with  them  to  the  frontier,  or  had  they  been  un- 
necessarily detained,  or  had  there  been  any  wilful  harshness  in  the 
mode  of  carrying  into  eflfect  the  measures  adopted,  a  claim  might, 
perhaps,  have  been  sustained  ;  but  there  is  no  evidence  of  this  charac- 
ter on  either  of  the  points  named. 

The  learned  counsel  for  the  British  government  has  cited  the  case  of 
Harmony  v.  Mitchell,  13  Hoioard  Hep.,  115,  as  in  point,  and,  in  other 
respects,  has  argued  the  case  with  his  usual  eminent  ability.  In  the 
case  cited,  however,  a  large  portion  of  the  goods,  then  on  their  way  to 
the  Mexican  market,  under  circumstances  similar  to  the  present  case, 
were  seized  and  converted  to  the  public  use,  and  the  remainder  were 
abandoned. 

The  jury  also  found  that  the  seizure  was  not  caused  by  urgent  or 
immediate  necessity.  The  case,  therefore,  is  wholly  diverse  from  the 
present. 

There  are  serious  doubts  whether  the  finding  of  the  jury  in  that  case 
was  warranted  by  the  evidence  as  reported,  but,  with  the  facts  thus 
found  by  them,  the  judgment  of  court  follows,  of  course. 

In  the  case  before  us,  there  is  no  reason  to  doubt  that  the  detention 
of  the  caravan  was  dictated  by  imperious  necessity,  and  was  an  exer- 
cise of*power  clearly  within  the  acknowledged  and  just  right  of  the 
commander  of  the  American  forces.  The  claimants  stobn  in  bo  rela- 
tion to  the  United  States  government  that  relieved  them  from  such  a 
necessity.  Their  venture  was,  moreover,  a  successful  one,  though 
their  profits  would  have  been  much  larger  had  no  detention  occurred. 
I  see,  therefore,  no  just  ground  to  sustain  this  claim  on  any  principle 
of  law  or  equity. 


»* 


OONVBNTION   WITH  OBEAT  BRITAIN. 


366 


e  forces, 
nount  of 

Dstances, 

vfiih  the 

rerntnent, 

might  be 

had  grace 
they  were 
y  been  un- 
less in  the 
lim  might, 
ihis  charac- 

L  the  case  of 
nd,  in  other 
ity.  In  the 
their  way  to 
Lresent  case, 
lainder  were 

by  urgent  or 
srse  from  the 

y  in  that  case 
le  facts  thus 

the  detention 
-was  an  exer- 
;  right  of  the 
jA  in  HO  rela- 
from  such  a 
one,  though 
,tion  occurred, 
any  principle 


Hornby,  British  Coramissioner :  .  / 

In  considering  the  case,  stated  that  he  came  to  a  different  result 
from  his  colleague ;  he  regarded  the  right  given  to  the  claimants  to 
embark  in  the  trade  with  Mexico  as  extending  not  merely  to  the 

« 

Mexican  frontier,  hut  that  in  justice  and  equity  it  extended  to  the 
entire  destination  of  tfie  goods,  and  that  the  risk  of  detention,  if  any 
occurred,  should  rest  on  the  government  who  had  held  out  encourage- 
ment to  proceed,  and  not  on  the  claimants. 

He  held  that  the  burden  of  proof,  showing  the  necessity  of  detention, 
was  on  the  government,  and  should  not  have  been  left  as  a  mere  mat- 
ter of  inference  from  general  facts  in  the  case,  but  direct  evidence 
should  have  been  given  on  the  point ;  and  that  substantially  the  same 
evidence  existed  in  this  case  as  in  the  case  of  Harmony  v.  Mitchell, 
cited  by  counsel,  where  the  jury  found  for  the  plaintiffs.  * 

A  serious  injury  has  resulted.  It  may  have  been  caused  by  the 
necessity  of  war  ;  but  he  considered  the  claimants  as  having  in  sub- 
stance a  license  to  trade  with  the  enemi^  and  that  it  should  not  be 
revoked  or  prejudiced  without  compensation  for  the  damage. 


t 


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ri 


m 

i 


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■WW    Jt 


866 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


H 


ii     ' 


Bates,  Umpire : 

This  plaim  is  put  in  on  behalf  of  Messrs.  Kerford  &  Jenkin,  who 
have  been  established  in  Zacatecas,  as  merchants,  for  eighteen  years  ; 
and  have  been  engaged  in  trade  with  Santa  Fe,  Chihuahua,  and  other 
places  in  the  adjoining  districts.       •  .'      •  - 

The  facts  and  circumstances  alleged  are  as  follows:  In  the  year 
1843,  the  Congress  of  the  United  States  passed  an  act  authorizing  the 
export  of  merchandise  overland  to  Canada,  and  to  Mexico,  via  Santa 
Fe,  with  the  benefit  of  a  drawback  of  duties,  and  the  claimants  had, 
in  1846,  prepared  in  England,  a  quantity  of  goods  suited  to  the  Santa 
Fe  trade,  and  apparently  not  suited  to  any  other  market. 

The  goodu  arrived  in  Philadelphia,  by  the  ship  ''Saranac,"  in 
June,  1846;  the  customs  entry  is  dated  19th  June,  1846;  at  which 
time  war  existed  between  the  United  States  and  Mexico,  and  all  com- 
mercial intercourse  was  stopped. 

The  agents  of  the  claimants,  on  18th  June,  1846,  petitioned  the 
government  of  the  United  S^tes^  stating  that  these  goods  had  b^pn 
prepared  expressly  for  the  Santa  F6  trade,  and,  being  suited  to  no 
other  market,  immense  loss  would  be  sustained  if  they  were  not  per- 
mitted to  carry  out  their  views ;  and  that  they  had  five  hundred  mules, 
forty  wagons,  and  forty- five  men  waiting  at  Fort  Independence  for  the 
goods,  at  the  charge  of  Mr.  Kerford  and  partners ; .  they,  therefore, 
prayed  permission  to  send  their  goods  forward,  with  benefit  of  draw- 
back. .      ^ 

The  United  States  government  granted  the  applicatioW*  under  the 
peculiar  circumstances  involved,  and  without  giving  risif^  any  infer- 
ences as  regards  the  condition  of  Santa  Fe,  or  to  act  as  a, precedent  in 
other  cases." 

The  export  entry  was  dated  June  29,  1846,  for  986  packages  goods 
to  Santa  Fe  and  Chihuahua,  by  the  route  of  the  Missouri  river ;  and 
the  invoice  value,  exclusively  of  charges,  was  £14,210  16«.  lldf. 

The  goods  arrived  at  Fort  Independence,  in  transitu  for  Santa  Fe  in 
New  Mexico.  The  inspector's  certificate  is  dated  the  30ch  July,  1846. 
The  caravan,  consisting,  according  to  Mr.  Kerford's  statement,  of  45 
wagons,  600  mules,  250  oxen,  and  about  forty  horses,  valued  at  about 
|80,000 ;  but,  according  to  Mr.  Gentry's  statement,  of  46  wagons, 
600  mules,  350  oxen,  and  20  horses,  valued  at  about  $68,150,  started 


CONVENTION  Tf  ITH   GREAT  BRITAIN. 


367 


n,  who 

years ; 

id  other 

he  year 
zing  the 
la  Santa 
nts  had, 
he  Santa 

mac,"  in 

at  which 

i  all  com- 

bioned  the 
I  had  b^n 
Ited  to  no 
re  not  pev- 
ired  mules, 
jnce  for  the 
therefore, 
it  of  draw- 

"  under  the 

0  any  infer- 
)recedent  in 

kages  goods 
i  river*,  and 

Santa  Fe  in 

1  July,  1846. 

ement,  of  45 
ued  at  ahout 
f  46  wagons, 
;,150,  started 


from  Fort  Independence,  under  the  care  of  80  armed  men,  in  the  month 
of  August.  The  precise  day  is  not  stated,  but  it  was  late  in  the  season, 
the  month  of  May  being  the  best  mouth  to  start  in. 

After  six  weeks'  march,  without  interruption,  they  were  overtaken 
by  a  detachment  of  Missouri  volunteers,  under  Colonel  Price ;  to  whom 
Mr.  Kerford  exhibited  thtf  permit,  and  other  papers  received  from  the 
custom-house  at  Philadelphia,  and  represented  that  he  was  a  British 
subject.  Colonel  Price  examined  every  wagon,  and  detained  the  cara- 
van ten  days,  and  then  suffered  it  to  proceed,  and  they  arrived  at 
Santa  Fe,  according  to  Mr.  Kerford,  on  or  about  the  end  of  October, 
but  the  consular  certificate  for  the  return  of  the  duties  was  dated  Santa 
Fe,  October  7,  1846.  -.    't  M 

On  their  arrival  at  Santa  Fe,  Mr.  Kerford  waited  on  General  Kear- 
ney, the  United  States  commander  of  the  district,  and  complained  to 
him  of  the  treatment  he  bad  received  from  Colonel  Price.  Qdneral 
Kearney  assured  him  that  the  road  was  open  to  Chihuahua,  and  that 
he  might  proceed  with  his  caravan  without  risk  of  further  interrup- 
tionj  upon  which  they  proceeded  for  several  days,  and  had  arrived  in  a 
wild  country,  where  no  supplies  or  provisions  could  be  obtained,  when 
they  were  stopped  by  auotlier  body  of  American  volunteers,  under  the 
command  of  Captain  Walton,  who,  on  being  informed  that  the  goods 
were  British  property,  allowed  them  to  proceed  ;  but,  at  the  end  of 
two  days,  sent  a  body  of  200  men  after  them,  who  commanded  them 
to  halt,  and  mounted  guard  around  the  wagons,  with  orders  to  shoot 
the  first  man  who  should  attempt  to  move.  They  thought  it  best  to 
submit,  although  capable  of  forcing  a  passage,  as  the  men  were  all 
accustomed  t^he  use  of  fire-arms. 

About  a  month  afterwards.  Colonel  Doniphan  took  the  command  of 
the  forces.  It  appeared  to  be  the  duty  of  the  claimant  to  submit,  and 
he,  with  the  caravan,  was  detained  for  two  months,  according  to  Mr. 
Kerford,  but  according  to  Mr.  Gentry  for  six  weeks,  during  which  the 
men  were  exposed  to  the  inclemency  of  a  severe  winter,  and  were  re- 
duced to  extreme  want,  and  many  of  the  mules  and  oxen  perished. 

The  claimant  applied  to  the  commissary  for  relief,  but  none  was 
afforded,  as  the  troops  were  on  half  rations.  During  the  whole 
of  this  detention,  the  claimant  made  repeated  applications  to  be  re- 
leased, which  were  refused  on  the  ground  that  the  introduction  of  so 
much  valuable  property,  though  it  did  not  include  any  munitions  of 


._'^St^ 


M< 


368 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


i 


war,  would  be  a  great  advantage  to  the  enemy  from  the  duties  accru- 
ing  upon  it.  ': 

At  length  Colonel  Doniphan  moved  forward  to  attack  Chihuahua, 
the  caravan  being  ordered  to  travel  in  the  rear,  until  a  battle  took 
place,  in  which  the  Americans  were  successful.  Even  then  the  cara- 
van was  not  allowed  to  proceed,  but  was  detained  for  several  weeks, 
(six  weeks,  according  to  Mr.  Gentry,)  when  the  vigilance  of  the  guard 
having  been  relaxed,  they  prosecuted  the  journey  and  reached  Chi- 
huahua the  latter  end  of  February,  1847,  having  been  detained  three 
and  a  half  months  beyond  the  time  usually  required  for  the  journey. 

In  consequence  of  this  delay,  the  goods  were  sold  at  nearly  thirty 
per  cent,  below  what  they  would  have  realized  from  them  at  an 
earlier  period. 

To  show  how  little  reliance  can  be  placed  on  the  only  evidence  in 
support  of  this  claim,  the  following  notes  from  depositions  on  oath  of 
Mr.  Kerford,  and  Mr.  Reuben  Gentry,  are  placed  in  juxtu-position, 
remarks  thereon  being  made  in  italics : 


Mr,  Ker/ord's  statement. 

Messrs.  Kerford  &  Jenkin  were 
established  in  trade  at  Zacatecas, 
for  eighteen  years. 

Imported  986  packages  of  goods 
by  the  "  Saranac,"  and  obtained 
leave,  on  petition,  to  export  the 
same  under  drawback. 

The  goods  were  forwarded  to 
Fort  Independence.  The  caravan 
consisted  of  45  wagons,  about  600 
mules,  250  oxen,  and  about  40 
horses,  valued  at  about  $80,000. 
under  an  escort  of  80  men.  The 
caravan  started  from  Fort  Inde- 
pendence in  August,  1846, 

They  proceeded  six  weeks  with- 
out interruption,  when  they  were 
overtaken  by  Colonel  Price,  who 
examined  all  the  wagons,   &c. , 


Beuhen  Gentry's  statemmt.tt 

Reuben    Gentry    was    general 
manager  of  the  caravan  in  1846. 

There  were   986  packages   of 
goods. 


The  caravan,  co|||isting  of  46 
wagons,  500  mules,  350  oxen,  and 
20  horses,  valued  at  $68,150,  un- 
der conduct  of  80  men,  started 
from  Fort  Independence  early  in 
July,  1846. 

(This  is  clearly  incorrect;  ths 
goods  were  not  there  at  this  time.) 

Proceeded  without  interruption 
as  far  as  Council  Grove,  Missouri, 
and  were  then  overtaken  by  two 
companies  of  volunteers,  under 


'-  7 


accTU- 

Luahua, 
tie  took 
be  cara- 
l  weeks, 
le  guard 
Ked  Ohi- 
led  three 
journey, 
rly  thirty 
jm  at  an 

yidence  in 
on  oath  of 
a-position, 

dement. >s- 

as    general 
m  in  1846. 

ackages  of 


CONVENTION  WITH  GREAT  BRITAIN. 


369 


isting  of  46 
50  oxen,  and 
8,150,  nn- 
men,  started 
ence  early  in 

incorrect;  tU 
at  this  time.) 
t  interruption 
ove,  Missouri, 
taken  hy  two 
nteers,  under 


and  forcibly  detained  the  caravan 
ten  days.  They  were  then  per- 
mitted to  proceed. 


V 


The  caravan  arrived  at  Santa 
Fi  on  or  about  the  end  of  October. 

(The  consular  certificate  for  re- 
turn of  duties  was  dated  October  7, 
1846.) 


At  Santa  Fe,  Mr.  Kerford  waited 
on  General  Kearney,  and  was  as- 
sured that  th?  road  was  open,  &c. 

After  leaving  Santa  Fe,  pro- 
ceeded several  days  till  they  ar- 
rived in  a  wild  country,  Sec. ;  were 
stopped  by  another  body  of  Ameri- 
can volunteers  under  Captain  Wal- 
ton ;  allowed  to  proceed,  but,  after 
two  days,  Captain  Walton  sent 
200  men,  who  forcibly  detained 
them.  About  a  month  afterwards. 
Colonel  Doniphan  took  the  com- 
mand. 

24 


Cifiptains  McMillan  and  Horan, 
who  overhauled  the  caravan  and 
detained  them  one  day.  They 
went  on  for  three  days,  and  were 
overtaken  by  volunteers  under  a 
subaltern,  who  detained  them,  by 
order  of  Colonel  Price,  for  ten 
days,  at  Cotton  Creek,  when  Colo- 
nel Price  came  up,  and  examined 
all  the  wagons,  &c. 

In  consequence  of  this  delay, 
they  did  not  reach  the  watering 
place  that  day.  At  night,  many 
of  the  oxen  broke  loose,  and  while 
the  men  were  looking  for  them, 
the  Indians  came  and  carried  away 
35  piules ;  they  lost,  also,  15  oxen. 

The  result  of  the  detention  was 
that  three  weeks  were  consumed 
beyond  the  usual  period  in  reach' 
ing  Santa  F^.  Mr.  Kerford  had 
to  go  forward  into  New  Mexico, 
and  buy  mules  at  exorbitant 
prices. 


Proceeded  towards  Chil  r.aaua, 
and  reached  Val  Verde  early  in 
November  ;  were  then  stopped  by 
Captain  Walton  and  forcibly  de- 
tained six  iceeTes,  after  which  Colo- 
nel Doniphan  took  the  command. 
Permission  to  proceed  refused,  al- 
though repeatedly  applied  for^  to 
Captain  Walton,  and  Colonel 
Doniphan. 


370 


ADJUSTMENT  OF   CLAIMS  UNDEB  THE 


A  P 


Found  it  necessary  to  submit, 
and  were  detained  two  months  du- 
ring inclement  weather,  in  which 
they  suffered  most  severely,  and 
lost  many  of  the  mules  and  oxen. 

Supplies  were  refused  by  the 
United  States  commander,  and  re- 
peated applications  for  permission 
to  depart  were  refused  on  the  plea 
that  the  duties  on  the  goods  would 
aid  the  enemy. 

On  the  14th  of  December  sent 
a  formal  protest. 

At  length.  Colonel  Doniphan 
came  up  with  reinforcements,  and 
they  marched  forward,  the  cara- 
van following  in  the  rear.  Fol- 
lowed till  a  battle  was  fought,  in 
which  the  Americans  were  success- 
ful. Even  then  were  not  allowed 
to  proceed,  and  again  detained 
several  weeks. 

(That  part  of  Genti'y'a  narrative 
hy  \ohicli  the  great  loss  of  mules, 
dec. ,  is  to  he  accounted  for,  appears 
to  he  assigned  to  an  earlier  period 
and  a  different  locality  in  Mr.  Ker- 
ford's  statement.) 


{Query. —  Waa  it  six  weeks,  or 
two  months  ?     Which  is  correct?) 


The  vigilance  of  the  guard  hav- 
ing relaxed,  went  on,  and  reached 
Chihuahua  in  the  latter  end  of 
February,  1847. 

(In  Mr.  Kerf ord'  s  statement  of  the 
daim,  they  are  said  to  have  arrived 


On  the  14th  of  December,  sent 
a  formal  protest. 

The  troops  under  Colonel  Doni- 
phan proceeded  towards  El  Paso ; 
caravan  followed  in  the  rear ; 
reached  El  Paso  about  the  end  of 
December.  During  this  march 
the  cattle  were  subject  to  great 
privations;  there  was  no  grass 
and  little  water,  and  many  of  the 
oxen,  mules,  and  horses  died;  de- 
tained there  fully  six  weeks,  the 
cattle  being  nearly  all  starved 
with  cold  and  want  of  food,  many 
oxen  and  mules  died,  and  almost 
all  the  horses.  Permission  to 
proceed  still  refused,  which  Mr. 
Gentry  attributes  to  undue  influ- 
ence of  other  traders,  fearing  the 
large  supply  would  surfeit  the 
market. 

After  six  weeks  escaped  the  vigi- 
lance of  the  American  forces,  and 
reached  Chihuahua  towards  the 
end  of  February,  1847 — they  ought 
to  have  arrived  by  the  1st  of  No- 
vember, 1846. 


5!"i 


CONVENTION  WITH   GREAT  BRITAIN. 


371 


.,  or 


in  April,  1847.    He  makes  a  charge 
of  interest  to  the  middle  of  April.) 


er,  sent 

el  Doni- 
iil  Paso ', 

10  vear ', 
he  end  of 
is  march 

to  great 
no  grass 
vny  of  the 
died-,  de- 
weeks,  the 

11  starved 
food,  many 

^nd  almost 

Imission   to 

which  Mr. 

[ndue  infln- 

fearing  the 

surfeit   the 

[ped  thevigi- 
forces,  and 
Itowards  the 
]_they  ought 

lie  1st  of  No- 


Marked  value  of  goods  depreci- 
ated 30percent.;  goods  sold  nearly 
30  per  cent,  below  what  they  would 
have  done  at  an  earlier  period. 


To  add  to  their  losses,  the  Uni- 
ted States  army  imposed  an  export 
duty  on  specie  of  6  per  cent. 

{This  cannot  have  affected  Mr. 
Ker/ord's  interests,  as  Mr.  Gentry 
2')roves  that  the  goods  ivould,  in  the 
regular  course,  if  no  detention  had 
occurred,  have  been  disposed  of  hy 
the  end  of  March,  1847 ;  a7id  Mr. 
Kerford,  in  his  account,  shotvs  that 
the  above  duty  was  levied  subsequent 
f)  January,  1847.) 


{Tliistvouldnot  allow  threemonths 
for  the  journey.)  •' 

Expended  fully  $40,000  in  the 
purchase  of  food,  &c. 

(Mr.  Kerford  claims  $60,000/(W 
losses  by  forced  sales  in  procuring 
food,  dc.) 

Believes  Colonel  Doniphan  had 
no  orders  to  go  beyond  Santa  Fe. 
General  Kearney  told  them  they 
might  go  on  to  Chihuahua,  and 
many  traders  did  so. 

Prices  of  the  goods  had  fallen 
25  to  30  per  cent. ;  can  speak  with 
certainty  to  the  fact,  having  been 
engaged  in  this  business  in  Chi- 
huahua during  the  year  1845  and 
most  of  1846.  Large  sales  were 
also  forced,  to  buy  food,  &c. 

{Mr.  Gentry  teas  absent  during 
the  period  in  question,  and  cannot 
therefore  speak  from  his  own  knowl- 
edge.) 

Having  gone  fully  into  the  cal- 
culation, believes  the  loss,  from  fall 
in  price  of  goods  and  forced  sales, 
to  be  -  -  -  -  $95,000 
Mules,  oxen,  &c.,  lost  -  17,750 
Additional  wages  to  men 

and  to  Mr.  Gentry      -     13,000 


125,750 


and  is  fully  persuaded  that  the  loss 
in  consequence  of  detention  is  not 
less  than  $180,000,  with  interest 
from  the  end  of  March,  1847,  when 
the  sale  of  goods  would  have  been 
completed. 


•PI 


872 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


I     8 


(il/r.  Kerford  eatimatea  the  loaa, 
by  depreciation  in  price  and  forced 
aalea,  a<  $125,000,  or  $30,000  more 
than  Mr.  Gentry's  eatimate.) 


Periods  of  detention  stated  by 
Mr.  Kerford : 

10  days,  several  days,  2  months, 
several  weeks — total,  three  months 
and  a  half. 


{But  Mr.  Gentry  muat  have  been 
abaent/r&m  Chihuahua  the  moat  of 
1846,  and  could  have  no  personal 
knowledge  of  the  state  of  trade  du- 
ring the  time  in  queation.) 

Has  been  in  the  Santa  Fe  trade 
from  1839  to  1848.  500  to  tOO 
wagon  loads  of  goods  go  annually 
by  this  route,  of  which  only  100 
tp  150  are  consumed  in  Santa  F^ 
and  the  adjoining  districts.  The 
term  "  Santa  ¥6  trade,"  is  used  in 
a  wide  sense.  Certificates  for  ob- 
taining drawback  were  sent  from 
Santa  F6,  although  almost  all  the 
goods  went  on  to  Chihuahua. 

Periods  of  detention  stated  by 
Mr.  Gentry: 

11  days,  6  weeks,  6  weeks — to- 
tal, three  and  a  half  to  four 
months. 


On  a  review  of  the  whole  circumstances,  the  claimants'  interests 
appear  to  have  been  affected  as  follows : 

The  value  of  the  986  packages  of  goods  sent  from  England  was,  as 
per  invoice,  exclusive  of  charges,  £14,210  16«.  lid.,  or  about  $70,000. 
The  Santa  Fe  trade  was  stopped  when  the  goods  arrived ;  and,  as  the 
owners  would  have  been  exposed  to  immense  loss  thereby,  they  pe- 
titioned the  United  States  Treasury  to  permit,  in  this  instance,  a 
deviation  from  the  circular  of  lltli  June,  1846,  prohibiting  the  export 
in  the  way  desired. 

The  treasury  accordingly  permitted  the  export,  with  benefit  of  draw- 
back, "without  giving  rise  to  any  inferences  as  regards  the  condition 
of  Santa  Fe,  or  to  act  as  a  precedent  in  other  cases;"  and  on  receipt 
of  the  consular  certificate  of  the  arrival  of  the  goods  at  Santa  Fe,  the 
drawback,  amounting  to  $53,108  94,  was  repaid  to  the  claimants. 

After  various  delays  the  goods  (or  rather  the  greater  part  of  them, 
a  portion  having  been  sold,  as  is  alleged,  to  purchase  supplies  and 


U 


CONVENTION   WITH   GREAT  BRITAIN. 


878 


B  been 
loat  of 
rsonol 
dc  du- 

e  trade 
to  700 
anually 
nly  100 
anta  F6 
,8.    The 
8  used  in 
!B  for  o\)- 
ent  from 
Bt  all  the 
bhua. 
stated  by 

veeks — to- 
f  to   four 


interests 

and  was,  as 
)ut  170,000. 

and,  as  the 
by,  they  pe- 

instance,  a 
2  the  export 

ncfitofdraw- 
the  condition 
nd  on  receipt 
Santa  Fe,  the 
claimants, 
part  of  them, 
supplies  and 


food,)  arrived  at  Chihuahua,  in  February,  1847,  whore  they  were 
Hold  for  $260,000,  a  sum  wliich,  after  the  most  liberal  allowance  for 
expenses,  must  have  left  a  handsome  profit  on  the  enterprise.  8o 
that  by  this  oct  of  grace  and  courtesy  on  the  part  of  the  United  States 
government,  the  claimants  were  saved  immense  loss,  and  enabled  to 
prosecute  their  adventure  to  a  successful  issue.  They  received  back  a 
8umof$5o,108  94,  for  duties,  and  the  mules,  oxen,  &c.,  provided, 
were  rendered  available,  which  otherwise  would  have  been  but  little 
value.  The  claim,  therefore,  is  not  for  actual  loss  sustained,  but  for 
alleged  diminution  of  profits  arising  out  of  the  detention  of  the  cara- 
van in  the  course  of  the  journey. 

Much  stress  has  been  laid,  on  the  part  of  the  claimants,  on  the  per- 
mission to  export  under  drawback,  which  has  been  incorrectly  and 
improperly  termed  a  license.  But  there  is  no  ground  for  the  belief 
that  anything  more  was  intended  than  a  permission  to  the  claimants 
to  undertake  an  adventure  which  was  at  the  time  legally  prohibited.  It 
cannot  be  imagined  that  the  United  States  government  had  the 
slightest  intention  to  confer  a  privilege  which  might  interfere  ma- 
terially with  their  operations  against  the  enemy.  Indeed,  the  reser- 
vation expressly  made  in  granting  the  petition  was  evidently  intended 
to  exonerate  the  United  States  government  from  all  responsibility, 
and  to  intimate  to  the  petitioners  that  they  must  take  their  chance  in 
pursuing  the  adventure. 

They  knew  that  war  was  being  carried  on,  and  must  also  have  been 
prepared  for  difficulties  and  hindrances,  incident  to  a  disturbed  state 
of  affairs.  The  permission  was  not  a  privilege  granted  to  them  as 
British  subjects,  but  was  equally  granted  to  other  traders,  citizens  of 
the  United  States,  who  were  placed  in  similar  circumstances.  If  was 
a  mere  matter  of  favor  on  the  part  of  the  United  States  government  to 
allow  the  trade  to  be  carried  on  at  all  by  claimants  and  other  traders, 
and  they  embarked  in  it  with  a  k^iowledge  of  the  disturbed  state  of 
the  country  to  which  the  adventurers  were  bound. 

Much  reliance  has  been  placed  on  the  case  of  Harmony  v.  Mitchell, 
1  Black.  Rep, ,  549,  as  affording  a  precedent  in  support  of  this  claim ; 
but  the  two  cases  differ  essentially,  and  the  opinion  of  the  court,  de- 
livered by  Mr.  Chief  Justice  Taney,  is  clearly  adverse  to  Messrs.  Ker- 
ford  &  Jenkin. 


\l 


,4.1 


i|i 


i  ■« 


374 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


Harmony  and  Mitchell's  case. 

1.  The  jury  found  for  Harmony  on  the  groumls  that  he  was  not 
trading  with  the  enemy,  that  his  goods  and  property  were  seized  and 
part  of  them  converted  to  the  public  use,  witliout  the  plea  of  urgent 
or  immediate  necessity,  and  that  Harmony  never  resumed  possession 
after  the  seizure. 

2.  The  property  of  Harmony  was  left  in  Chihuahua  when  the  place 
was  evacuated  by  the  Americans,  (the  goods  having  been  unsalable 
during  tlieir  occupation,)  and  were  confiscated  by  the  Mexicans  on 
their  return,  and  wholly  lost  to  Harmony. 

3.  The  seizure  in  this  case  took  place  at  San  Eleasario^  in  the 
province  of  Chihuahua,  at  which  place  Harmony  (having  determined 
to  proceed  no  further)  was  compelled  by  Colonel  Mitchell  to  remain 
with  and  accompany  the  troops. 


Kerford  and  Jenkin's  case. 

1.  In  the  case  of  Messrs.  Kerford  &  Jenkins  there  was  no  seizure, 
nor  has  any  been  alleged;  their  avowed  object  was  to  go  forward  for 
the  purpose  of  trading  with  the  enemy,  and  they  continued  all  along 
in  the  possession  of  their  goods. 

2.  The  property  of  Messrs.  Kerford  &  Jenkin  was  safely  conducted 
to  Chihuahua,  and  realized  a  very  large  sum,  $260,000,  by  claimants' 
statement. 

3.  The  complaint  of  Messrs.  Kerford  A:  Jenkin,  is  not  that  they 
'vere  not  allowed  to  leave  the  army  and  proceed  no  further,  but  that 
they  were  not  allowed  to  precede  the  army  of  the  United  States  to  the 
place  which  they  were  going  to  attack. 

The  question,  therefore,  in  this  case  resolves  itself  into  one  of  de- 
tention. The  commander  of  the  United  States  forces  had  undertaken 
an  expedition  against  the  city  to  which  Messrs.  Kerford  &  Jenkin's 
caravan  was  bound.  The  arrival  of  the  caravan  would  certainly  have 
put  the  inhabitants  of  Chihuahua  in  a  more  favorable  position  for 
frustrating  the  expedition  ;  indeed,  it  is  admitted  in  the  plea  put  in 
on  behalf  of  the  claimants,  that  the  arrival  of  the  caravan  was  anxiously 
expected,  on  account  of  the  duties  payable  to  the  governor  of  the 
place.     The  enemy  would  have  derived  a  further  advantage  in  ob- 


CONVENTION  WITH  GREAT  BRITAIN. 


376 


as  not 
,ed  and 
urgent 
jsession 


lie  place 
asalatle 
leans  on 

,  in  the 
;ermined 
0  remain 


.0  seizure, 
^rward  for 
1  all  along 

conducted 
claimants' 

that  they 

■but  that 

tates  to  the 

)  one  of  de- 
undertaken 
&  Jenkin's 
rtainly  have 
position  for 
)  plea  put  in 
'as  anxiously 
ernor  of  the 
mtage  in  oh- 


taining  information  respecting  the  strength  and  resources  of  the  in- 
vading force,  and  part  of  the  men  employed  to  conduct  the  caravan 
were  Mexicans. 

These  circumstances  are  surely  a  sufficient  justification  of  the  con- 
trol exercised  hy  Colonel  Doniphan  over  the  movements  of  Messrs. 
Kerford's  caravan.  Similar  control  was  exercised  over  other  traders, 
citizens  of  the  United  States,  without  complaint  on  their  part. 

It  is  contended  that,  as  neutrals,  Messrs.  Kerford  stood  in  a  better 
position,  and  could  not  properly  be  impeded  in  carrying  on  their  trade; 
but,  admitting,  for  argument  sake  that  they  were  neutrals,  this  does 
not  alter  the  case.  It  must  be  remembered  that  the  trade  in  question 
had  been  stopped,  and  was  only  allowed  under  special  circumstances, 
and  with  a  special  reserve.  It  was  not  an  open  road  on  which  a 
friendly  power  had  a  right  to  travel  freely  and  without  question. 

The  case  of  Harrmny  v.  Mitchell,  has  been  relied  on  as  a  precedent, 
but  the  following  passage  from  the  "  opinion  of  the  court,"  delivered 
by  Mr.  Chief  Justice  Taney,  is  conclusive  in  favor  of  the  right  of  de- 
tention, for  he  says  that,  "^p  to  the  'period  at  tvhich  the  trespass  is  al- 
leged to  have  been  committed  at  San  Eleasario,  in  the  2y'i'ovince  of  Chi- 
huahua, it  is  conceded  that  no  control  loas  exercised  over  the  property  of 
the  plaintiff ,  that  is  not  perfectly  justifiable  in  a  state  of  loar." 

This  seizure  took  place  on  10th  February,  1847,  at  which  time 
Harmony's  property  must  have  been  detained  for  a  longer  period  than 
that  of  Messrs.  Kerford  &  Jenkin.  On  the  whole  review  of  the  case 
it  appears : 

1.  That  no  engagement  was  entered  into  by  the  United  States 
government,  which  can  be  construed  into  a  license  to  trade  with  the 
enemy,  or  to  pursue  a  course  calculated  to  interfere  with  the  military 
operations  of  the  United  States  forces. 

2.  That  the  detention  by  which  the  alleged  losses  were  occasioned 
arose  out  of  the  state  of  war,  and  was  a  contingency  incident  to  any 
trading  adventure  undertaken  under  such  circumstances ;  and  that 
there  is,  therefore,  no  fair  claim  for  compensation  against  the  govern- 
ment of  the  United  States. 


m 


I 


876 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


THE  ALBION. 


A  British  vessel  was  seized  for  cutting  timber  and  trading  with  the  Indians  in  the  Oregon 
Territory  without  hcense.  Application  was  made  to  the  government  at  Washington,  re- 
questing, as  a  measure  of  clemency,  that  the  vessel  might  be  released.  Answer  was  sent 
that  she  might  be  released,  if  there  had  been  no  legal  condemnation  of  the  vessel ;  the  answer 
did  not  arrive  seasonably,  and  the  vessel  was  condemned  and  sold.  Allowance  was  made  to 
place  the  claimant  in  a  situation  as  favorable  as  if  the  instructions  of  the  government  had 
been  seasonably  received. 


The  Albion  left  London  with  a  cargo  of  merchandise  for  trade  with 
the  Indians  on  the  northwest  coast  of  America,  designing  to  return 
with  a  load  of  spars  for  the  British  navy.  She  had  a  license  from  the 
British  government  to  engage  in  trade  with  the  Indians,  provided  she 
did  not  deal  in  furs  ;  and  to  cut  timber  within  the  British  territories 
<on  that  coast. 

She  had  also  a  license  from  the  Hudson's  Bay  Company  to  cut  tim- 
ber, on  certain  specified  terms,  on  Vancouver's  Island ;  and  the  master 
of  the  vessel  was  authorized  to  arrange  for  and  cut  timber  on  the 
American  side  of  the  straits,  opposite  the  island,  if  he  could  obtain 
authority  for  this  purpose. 

The  vessel  arrived  out  in  1850  at  Vancouver's  Island  ;  and,  not 
being  able  to  obtain  timber  conveniently  by  arrangement  with  the 
Hudson's  Bay  Company,  proceeded  to  the  American  coast  in  Oregon 
Territory  ;  and,  finding  no  person  to  contract  with,  commenced  trade 
with  the  Indians^  and  the  cutting  and  felling  of  timber  there. 

Information  was  communicated  to  Astoria  of  her  proceedings,  and 
Mr.  Adair,  the  collector  of  that  port,  ordered  her  seizure  for  entering 
the  United  States  territory,  felling  timber,  and  trading  with  the  In- 
dians in  violation  of  law. 

She  was  seized  in  April,  1850,  at  Dungeness,  having  cut  forty-two 
spars,  from  sixty  to  ninety-six  feet  in  length,  and  from  eighteen  to 


CONVENTION   WITH   GREAT  BRITAIN. 


877 


)  Oregon 
gton,  re- 
was  sent 
te  answer 
!  made  to 
ment  had 


bde  with 
0  return 
irom  the 
ided  she 
srritories 

cut  tim- 

le  master 

r  on  the 

d  ohtain 

and,  not 
with  the 
in  Oregon 
iced  trade 

•e. 

lings,  and 

■r  entering 

ith  the  In- 


twenty-six  inches  square  at  the  hut,  part  of  which  were  on  hoard  the 
vessel,  and  the  others  were  lying  hy  her  side. 

The  officers  report  that  she  had  some  clothing,  hardware,  blankets, 
&c.,  on  hoard,  hut  the  larger  portion  of  her  cargo  had  been  sold  to 
Indians  or  settlers.  The  vessel  was  libelled  and  condemned,  and  was 
sold  in  the  fall  of  1850.    .  ' 

After  the  seizure,  application  was  made  at  Washington,  beseeching 
the  clemency  of  the  United  States  government,  so  far  as  it  might  be 
extended;  and,  on  January  11,  1851,  Mr.  Corwin,  the  Secretary  of 
the  Treasury,  gave  conditional  instructions  to  the  prosecuting  officer 
of  the  government,  "  to  release  the  Albion  in  case  there  had  been  no 
legal  condemnation  of  the  vessel  at  the  date  on  which  he  should  re- 
ceive the  instructions  of  the  department,  and  on  payment  of  the  costs 
attending  the  seizure."  * 

The  vessel  had  been  condemned  and  sold  some  two  months  prior  to 
the  date  of  these  instructions,  so  that  they  could  not  be  carried  out. 

Hannen,  agent  and  counsel  of  Great  Britain. 

Thomas,  agent  and  counsel  of  United  States. 


J  I 


t  forty-two 
jighteen  to 


378 


ADJUSTMENT   OF   CLAIMS  UNDER   THE 


'1:    li 


i    » 

II :! 
! 
1 .(! 


I 


II 


UpiiaMj  United  States  Commissioner  : 

The  facts  in  this  case  have  been  briefly,  but  fully,  recited  ;  and  the 
question  arises  how  far,  if  at  all,  this  commission  can  interpose  the 
clemency  of  the  government  to  relieve  the  claimant  from  the  loss  sus- 
tained by  him. 

It  should  be  borne  in  mind  that  we  have  but  one  side  of  the  case. 
Since  the  filing  of  the  claim  before  us,  it  has  been  impossible  to  obtain 
evidence  from  officers  in  Oregon  on  the  subject ;  and  the  case  has  been 
submitted,  both  at  Washington  and  liere,  solely  on  the  memorial  of 
the  claimant  and  such  evidence  as  he  has  furnished. 

It  appears  that  the  Albion  left  England  fully  instructed  as  to  the 
necessity  of  obtaining  licenses  to  trade  with  the  Indians,  and  to  cut 
timber  within  the  British  possessions,  or  within  those  of  the  Hudson's 
Bay  Company.  This  would  seem  to  indicate  to  the  owner  and  master 
of  the  vessel,  pretty  clearly,  that  similar  authority  would  be  required 
to  do  such  acts  within  the  American  Territory  of  Oregon,  where  we 
had  then  a  duly  organized  government. 

The  timber  obtained  was  felled  on  the  coast  opposite  the  Island  of 
Vancouver.  The  master  of  the  vessel  was  probably  induced  to  go 
there,  because  he  could  obtain  timber  on  the  coast,  of  as  good  quality 
as  in  Vancouver's  Island,  free  of  expense  ;  while  it  appears,  from  the 
papers  in  the  case,  it  could  not  be  had  from  Vancouver's  Island  with- 
out the  payment  of  compensation  to  the  agents  of  the  Hudson's  Bay 
Company,  who  had  a  trading  post  and  establishment  there.  He  could 
also  carry  on  trade  with  the  Indians  within  the  American  territories 
without  any  restriction  as  to  dealing  in  furs. 

The  timber  was  cut  at  a  point  on  the  coast  180  miles  by  land  from 
Astoria,  the  capital  of  Oregon,  but  a  much  further  distance  from  it 
by  water.  Intelligence  was  received  at  Astoria  of  this  trespass  upon 
the  territory  of  the  United  States  and  violation  of  its  laws,  and  the 
vessel  was  ordered  to  be  seized,  and  the  proceedings  were  had  which 
have  caused  the  hardship  complained  of. 

When  the  officers  of  the  government  heard  of  this  encroachment  on 
the  Territory,  what  was  to  be  done  ?  It  was  probably  not  the  first 
trespass  of  the  kind,  nor  likely  to  be  the  last,  unless  prompt  measures 
were  taken  for  redress.  It  would  hardly  have  answered  to  have  warned 
off  the  Albion,  and  permitted  the  matter  to  pass  in  this  manner;  and 


m 

timi 

wrc 
of 
satt 
coni 


CONVENTION   WITH   GREAT  BRITAIN. 


379 


and  the 
•pose  the 
loss  sus- 

the  case, 
to  ohtain 
!  has  heen 
jmorial  of 

I  as  to  the 
ind  to  cut 
B  Hudson's 
and  master 
he  required 
1,  where  we 
\ 

tie  Island  of 
duced  to  go 
rood  quality 
irs,  from  the 
Island  with- 
[udson's  Bay 
He  could 
an  territories 

by  land  from 

itance  from  it 

;respass  upon 

aws,  and  the 

ere  had  which 

croachment  on 
not  the  first 
ompt  measures 
to  have  warned 
manner;  and 


there  seemed  to  he  no  other  course  to  pursue  than  to  seize  the  vessel, 
and  follow  the  requirements  of  law.  This  was  done.  It  is  unfortu- 
nate that  the  consequences  fell  so  heavily  on  the  owner  of  the  vessel, 
but  it  was  not  without  the  clearest  fault  on  his  part. 

His  excuse  is  that  the  country  was  remote  and  unsettled,  and  the 
government  had  been  but.newly  established  there,  and  was  but  little 
known.  He  regards  the  wrong;  done  also  as  slight,  and  the  punish- 
ment heavy. 

It  is  further  urged  that  the  government  designed  to  extend  clemency 
to  the  claimant,  but  unfortunately  their  instructions  were  not  issued 
geasonahly  for  this  purpose.  These  circumstances  address  themselves 
to  us  with  some  force.  At  the  same  time,  in  considering  any  measure 
of  redress  the  case  may  demand,  we  should  inquire  how  far  the  gov- 
ernment has  derived  any  henefit  from  the  property  seized ;  it  should 
not  be  amerced  in  a  penalty  for  enforcing  necessary  and  important 
laws,  which  were  palpably  violated. 

There  are,  also,  some  circumstances  that  might  throw  light  on  the 
case,  which  are  unexplained.  It  does  not  appear  but  some  security 
might  have  been  given,  and  the  vessel  released  without  being  subject 
to  sale.  The  seizure  was  near  the  headquarters  of  the  Hudsons'  Bay 
Company,  who  had  full  ability  to  aid  the  owners  by  bond  or  other- 
wise. 

Further  it  does  not  appear  who  purchased  the  vessel,  or  what  be- 
came of  her.  It  may  have  gone  back  into  the  hands  of  the  owners  at 
a  very  reduced  rate.  There  is  a  deficiency  in  the  evidence  in  these 
respects,  which  might  throw  important  light  on  the  question  of 
damage. 

I  am  willing,  however,  on  the  case  submitted,  to  comply  with  the 
spirit  of  the  instructions  issued  hy  the  department,  and  return  to  the 
owners  the  amount  received  from  the  sale  of  the  vessel,  and  anything 
appertaining  to  her,  and  remit  all  damage  for  trespass  on  land  and 
timber. 

There  is  no  reason  why  the  government,  that  has  committed  no 
wrong,  should  do  more  than  this  to  a  wrong-doer,  and  pay  the  owners 
of  the  Albion  a  large  sum  of  money,  which  they  now  ask,  to  compen- 
sate them  for  the  loss  of  the  prohahle  profits  of  tlie  voyage,  and  for 
consequences  necessarily  arising  from  acknowledged  illegal  acts. 


■: 


|.ill 


i.'   ! 


380 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


i 


Hornby,  British  Commissioner: 

Concurred,  in  the  main,  with  the  views  presented.  He  regarded 
the  measure  of  redress  as  harsh  compared  with  the  wrong  committed. 
The  government  had  been  but  newly  established ;  the  acts  complained 
of  occurred  in  a  remote  and  unsettled  country ;  they  were  not  of  seri- 
ous damage,  and  the  master  of  the. vessel  could  have  had  no  just 
expectation  that  the  consequences  would  be  so  severely  visited  upon 
him. 

It  also  seemed  to  him,  it  would  have  been  wise  and  expedient  for 
the  government  officers,  before  proceeding  to  the  condemnation  of  the 
vessel,  to  have  obtained  specific  instructions  from  Washington ;  or,  at 
least,  have  allowed  sufficient  time  before  proceeding  to  extremities, 
to  have  learnt  the  answer  made  to  the  application  which  had  been 
transmitted,  if  the  fact  of  such  application  was  known  to  them. 

He  considered  the  commission  bound  to  carry  out,  at  least,  the 
measure  of  clemency  awarded  by  the  government,  and  was  of  opinion 
a  sum  in  damages  should  be  allowed,  that  should  place  the  owner  in 
as  favorable  a  position  as  though  the  instructions  of  the  Secretary  had 
been  received  at  Astoria,  before  the  sale  of  the  vessel,  and  was  willing 
to  submit  this  amount  to  the.consideration  of  the  umpire. 


CONYSNTION  WITH  GREAT  BRITAIN. 


381 


egarded 
amitted. 
Qplained 
t  of  seri- 
L  no  just 
bed  upon 


Bates,  Umpire : 

On  consideration  of  the  question  of  damage^  awarded  twenty  thou- 
sand dollars  on  account  of  the  hardship  of  the  case,  and  for  the  reason 
that  the  remoteness  of  the  Territory  was  such  as  to  prevent  the  clem- 
ency intended  by  the  government  seasonably  reaching  them. 


edient  for 
Lon  of  the 
)n;  or,  at 
itremities, 
had  been 

Lem. 

least,  the 
of  opinion 
lC  owner  in 
;retary  had 
vas  willing 


I,  , 


li 


382 


ADJUSTMENT  OF  CLAIMS  UNDER  TUE 


I 


I 


ii 


I 


III   j 


TEXAS  BONDS.— EXECUTORS  OF  JAMES  HOLFORD. 


In  1839,  bonds  were  issued  by  the  republic  of  Texas  for  advances  of  money  made  to  the 
government  by  the  claimants.  These  bonds  were  secured  by  a  pledge  of  the  faith  and 
revenues  of  Texas. 

In  1845,  Texas  was  received  under  the  general  government  of  the  United  States,  retaining 
all  her  public  lands,  and  with  a  provision  between  the  two  governments  that  these  lands 
were  to  be  applied  to  the  payment  of  the  debts  of  Texas,  and  that  such  debts  were,  in  no 
event,  to  be  a  charge  on  the  United  States. 

In  1850,  the  United  States  purchased  large  tracts  of  land  of  Texas,  and  provided  that  five 
million  dollars  of  the  purchase  money  should  be  reserved  by  the  United  States  to  be  applied 
in  payment  of  debts  for  which  duties  on  imports  had  been  specially  pledged.  This  and  other 
acts  have  been  pending  between  the  two  governments  to  the  present  time  relative  to  the 
adjustment  of  these  debts.  During  this  period  the  British  government  has  never  received  or 
recognized  the  claims  of  any  owner  of  these  bonds,  as  a  subject  fur  international  interposition 
against  the  United  States.  Held,  under  these  circumstances,  that  such  claims  were  not 
included  in  the  unsettled  claims  referred  to  the  commissioners  by  the  convention  of  Fol)ruary 
8,  1853,  and  that  the  commissioners  had  no  jurisdiction  over  them. 

A  pledge  of  the  revenues  of  the  government  is  in  the  nature  of  a  lien  to  the  creditor,  and 
is  binding  on  its  transfer  to  anotlicr  nation  ;  but  qitere,  whether  such  lien  can  justly  extend 
to  an  amount  clearly  boyond  the  value  of  any  such  revenues,  so  as  to  operate  as  a  bar  to 
international  union. 

Also,  where  a  nation  is  not  fully  merged  in  union  with  another,  but  retains  independent 
powers  and  jurisdictions,  whether  an  equitable  apiiortionmcnt  of  its  lial)iiities  may  not  be 
made  between  the  two  governments  as  a  preliminary  to  such  union,  witiiout  a  just  ground  of 
•complaint  on  the  part  of  creditors. 


Oil  tilt'  24tli  of  October,  18:58,  a  contract  was  ontcrecl  into  between 
•Jiime.s  Holf'ord,  of  London,  now  deceased,  and  Messrs.  Williams  and 
Btirnley,  commissioners  of  Texas,  wbo  were  authorized  to  nepjotiate  a 
loan,  under  the  provisions  of  an  act  of  the  Congress  of  Texas  of  May 
10,  18:58.  By  this  contract  Ifolford  was  to  purchase  for  the  republic 
of  Texas  a  steamer,  then  lying  at  Philadelphia,  and  provision  and  de- 
Jiver  her  at  Galveston,  in  Texas. 


CONVENTION   WITH   GREAT   BRITAIN. 


383 


made  to  the 
lie  faith  and 

tc8,  retaining 
.t  these  lands 

8  were,  in  no 

irided  that  five 

9  to  be  applied 
This  and  other 
relative  to  the 
ver  received  or 
al  interposition 
aims  were  not 

m  of  Foliruary 

le  creditor,  and 
justly  extend 
kte  as  a  bar  to 

[ins  independent 
]ies  may  not  be 
just  ground  of 


Into  between 

lilliams  ami 

negotiate  i\ 

exas  of  May 

Itlie  republic 

Ision  and  de- 


The  contract  was  complied  with,  and  was  afterwards  approved  by 
an  act  of  ..'■■  Congress  of  Texas  on  the  10th  of  January,  1839,  and 
bonds  were  issued  to  said  Holford  dated  July  1,  1839,  for  the  pay- 
ment of  which  the  faith  and  revenues  of  the  republic  were  solemnly 
pledged  by  acts  of  Congress  of  November  18, 1836,  and  May  15, 1838. 
Provision  was  also  made,  by  act  of  January  22,  1839,  that  a  cer- 
tain portion  of  the  sales  of  the  public  lands  should  be  annually  re- 
served, as  a  permanent  and  sinking  fund  for  the  payment  of  this  debt, 
until  the  whole  loan  should  be  paid  oif. 

It  is  alleged  that  payment  has  not  been  made  of  either  principal  or 
interest  on  these  bonds. 

In  1845  Texas  was  admitted  into  the  Union  as  one  of  the  United 
States. 

By  the  Constitution  of  the  United  States  the  general  government 
has  power  "  to  regulate  commerce,  and  to  lay  and  collect  taxes,  duties, 
imposts,  and  excises,"  and  no  State  has  power,  "without  consent  of 
Congress,  to  lay  any  imposts,  or  duties  on  imports  or  exports,  or 
enter  into  any  treaty,  alliance,  or  confederation  with  any  other 
State." — {United  States  Constitution,  sees.  Sth  and  IQth.) 

According  to  the  terms  agreed  upon  between  the  United  States  and 
the  republic  of  Texas,  whereby  that  republic  became  one  of  the  United 
States  of  America,  the  vacant  and  unappropriated  lands  within  its 
limits  were  to  be  retained  by  her,  and  **  applied  to  the  payment  of 
the  debts  and  liabilities  of  the  republic  of  Texas  ;  and  the  residue  of 
the  lands,  after  discharging  the  debts  and  liabilities,  were  to  be  dis- 
posed of  as  the  State  might  direct,  but  in  no  event  were  said  debts  and 
liabilities  to  become  a  charge  upon  the  government  of  the  United 
States."— (United  States  Statutes  at  Large,  vol  5,  ^).  t98.) 

Subsequently,  in  modifying  the  boundary  of  Texas,  the  United 
States,  in  1850,  on  condition  of  the  cession  by  Texas  of  certain  large 
tracts  of  lands  to  the  United  States,  agreed  to  pay  Texas  ten  millions 
of  dollars,  but  stipulated  that  "five  millions  of  the  same  should 
remain  unpaid  until  the  creditors  of  the  State  holding  lionds  and  other 
certificates  of  stock  of  Texas,  for  which  duties  on  imi)orts  were  specially 
pledged,  should  first  file  at  the  Treasury  of  the  United  States  releases  of 
all  claims  against  the  United  States  for  or  on  account  of  such  bonds 


1  s'S 


!  1 


i 


384 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


or  certificates,  in  the  form  prescribed  by  the  Secretary  of  the  Treasury, 

and  approved  by  the  President  of  the  United  States. ' ' 
Owing  to  various  difficulties  between  Texas  and  the  United  States 

in  reference  to  the  manner  of  appropriating  this  sum,  it  has  not,  up 

to  this  time,  been  paid ;  and  new  provisions,  in  reference  to  the  same, 

are  now  pending  before  the  Congress  of  the  United  States. 


OONVBNTION   WITH   OBEAT  BRITAIN. 


385 


•easury, 

d  States 

not,  up 

10  same, 


Thomas,  agent  and  counsel  for  the  United  States : 

Filed  a  protest  against  the  commissioncrH  assuming  jurisdiction  of 
tMs  claim,  or  of  any  other  arising  out  of  bonds  or  other  evidences  of 
debt  issued  by  the  republic  of  Texas  as  a  claim  against  the  United 
States,  for  the  following  reasons : 

I.  Because  it  is  in  no  proper  sense  a  claim  on  the  government  of  the 
United  States,  embraced  or  contemplated  by  the  convention  of  February 
8,  1853,  for  the  settlement  of  outstanding  claims. 

I|.  Because  the  second  of  the  resolutions  for  the  admission  of  the 
republic  uf  Texas  into  the  Union  as  a  State,  among  other  things, 
declares  that  "in  no  event  are  the  debts  and  liabilities  of  Texas  to 
become  a  charge  upon  the  government  of  the  United  States." 

III.  Because  the  people  of  the  said  republic  of  Texas,  by  deputies 
in  convention  assembled,  with  the  consent  of  the  existing  government, 
and  by  their  authority,  did  ordain  and  declare  that  they  assented  to 
and  accepted  the  pro[)Osal8,  conditions,  and  guaranties  contained  in 
the  resolutions  above  referred  to,  and  thereupon  she  was  admitted  into 
the  Union  as  a  State. 

IV.  Because  it  is  not  true,  as  is  asserted  in  the  statement  of  the 
claim  presented  to  the  commissioners,  that  Texas  is  incorporated  into 
and  subjected  to  the  dominion  of  the  United  States  government,  so  as 
to  destroy  her  responsibility  for  debts  contracted  while  an  independent 
republic,  or  her  ability  to  meet  them  ;  but,  on  the  contrary,  she  is  for 
the  purpose  of  fulfilling  these  obligations  as  clearly  responsible  for 
their  payment  by  the  law  of  nations,  by  her  separate  and  distinct 
organization,  and  by  her  solemn  agreement  with  the  United  States, 
as  she  ever  was,  and  is  fully  able  to  dischaige  them  ;  and  this  com- 
mission is  not  authorized  to  interfere  to  shift  any  such  obligation  from 
Texas  upon  the  United  States. 

V.  Because  this  commission  has  nothing  to  do  with  any  law  or  act 
of  the  United  States  addressed  to  the  government  or  people  of  Texas, 
designed  or  tending  to  induce  that  State  to  perform  her  obligations 
entered  into  wliile  an  independent  republic;  and  hence,  to  take  juris- 
diction of  this  claim  would  be  a  palpable  and  unwarrantable  violation 
of  the  spirit  and  intention  of  the  convention  establishing  this  com- 
mission, to  which  the  United  States  would  have  a  just  and  perfect 

25 


886 


ADJUSTMENT  OP  CLAIMS   UNDER  THE 


right  to  tako  exception,  an  mucli  »o  as  if  this  commiiHion  wcro  to  pasii 
lawH  for  the  government  of  the  United  StateH,  or  do  any  other  thing 
wholly  witliout  the  limits  ot'itH  authority. 

Hannbn,  agent  and  counsel  of  Great  Britain,  nssiHted  by  Mr. 
Cairns,  of  London,  argued  the  case  at  length  in  reply  to  the  protest 
of  the  agent  of  the  United  States,  and  generally  on  the  merits  of  the 
question. 


On  the  application  of  one  of  the  claimants,  this  case  was  re-argued 
before  the  commissioners  and  the  umpire.  For  her  Majesty's  govern- 
ment, Mr.  Revekdy  Johnson,  late  Attorney  General  of  the  United 
States,  assisted  by  Mr.  Hannen,  counsel  and  agent  for  the  British 
government;  Mr.  Thomas  fur  the  United  States. 


CONVENTION   WITH   GREAT   BRITAIN. 


387 


to  pftM 

r  thing 


by  Mf. 

2  nrotest 
its  of  the 


yo-ftrgued 
'a  govern- 
he  Un\ted 
he  British 


Thomas,  couriHol  nnd  ft«;ont  for  tho  United  States: 

Fiodiriok  Dawson,  of  Baltimor*!,  presents  ii  claim  against  the 
United  States  for  tho  payment  of  a  debtcontracteil  Avitli  him  hy  Texas, 
whilst  that  State  was  an*indepeudenl  ii  puhlic. 

It  is  hardly  necessary  to  rciiiiiid  the  colli /lissloncrs  that  hefore  tho 
commencement  of  tho  learned  counsel's  argument,  to  which  I  am 
ahout  to  reply,  I  took  ohjection  to  tho  jurlsiliction  of  tho  commission, 
and  insisted  that  this  could  not  he  a  case  proper  for  its  decision.  In 
that  I  was  so  far  overruled  as  that  tho  counsel  was  allowed  to  proceed 
in  order  to  mIiow  tho  jurisdiction.  lie,  however,  first  delivered  his 
argument  in  support  of  tho  claim,  and  afterwards  discussed  the  ques- 
tion of  jurisdiction.  I  shall  take  tho  more  usual  course  of  addressing 
myself  first  to  the  jurisdiction,  and  then  suhmit  some  ohservations  de- 
signed to  sliow  the  non-liahility  of  the  United  States  for  these  dehts. 
But  I  will  first  briefly  state  the  manner  in  which  this  claim 
arises. 

It  is  alleged  that  in  the  year  1838  Frederick  Dawson  contracted  to 
furnish  the  republic  of  Texas  with  a  navy,  to  consist  of  one  ship,  two 
brigs,  and  three  schooners.     These  vessels  were  built  and  delivered  to 
the  republic  of  Texas,  and  in  payment  therefor  that  government  issued 
to  the  claimant  its  bonds,  dated  December  1,  1839,  for  the  sum  of 
|280,000,  payable  in  five  years,  and  bearing  an  interest  of  ten  per 
cent,  per  annum.     It  is  also  alleged,  that  Texas  having  failed  to  pay 
the  interest  or  principle  of  these  bonds,  and  tho  United  States  having 
received  Texas  into  the  Union,  and  at  the  same  time  taken  possession 
of  tlie  revenues  arising  from  imports,  which,  under  tho  term  "reve- 
nues" used  in  the  bonds,  were  pledged  for  the  payment  of  both  the 
principal  and  interest,  that,  therefore,  the  United  States  government  is 
bound  to  pay  this  claim. 

This  case  had  been  so  elaborately  argued  by  the  sjiecial  and  distin- 
guished counsel,  Mr.  Cairns,  who  appeared  for  her  Majesty's  govern- 
ment, that  I  did  not  suppose  a  re-argument,  before  the  commissioners, 
would  be  demanded.  In  this,  however,  1  have  been  mistaken  ;  but  it 
is,  I  hope,  now  understood  that  the  presence  of  the  umpire  will  super- 
sede the  necessity  of  discussing  the  subject  again  before  him,  in  case 
of  disagreement  by  the  commissioners.  I  have  made  no  objection  to 
the  rehearing.     I  do  this  the  more  cheerfully,  as  renewed  interest  has 


m 


388 


ADJUSTMENT   OF  CLAIMS   UNDER  THE 


M    B' 


been  given  to  the  subject  by  the  distinguished  ex- Attorney  General  of 
the  United  States,  (Mr.  Reverdy  Jolmson,)  who  has  argued  the  case 
before  you  to-day,  on  behaK  of  her  Majesty's  government. 

The  declaration  or  memorial  which  sots  fortli  the  case,  addressed  to 
the  commissioners  by  the  counsel  of  Frederick  Dawson,  states  that  he 
became  a  naturalized  citizen  of  the  United  States  in  dune,  1824,  and 
renounced  all  allegiance  to  the  British  crown.  According  to  the  terms  of 
the  convention  under  wliich  this  commission  is  organized,  the  claims  of 
"7>/t7>7i  suhjccls  "  only  can  bo  entertained  against  the  United  States  ; 
and  I  submit  that  the  claimant  having  formally  taken  upon  himself  the 
obligations  of  a  citizen  of  the  United  States,  cannot  here  maintain  a 
claim  against  the  country  of  his  adoption.  In  apparent  anticipation 
of  this  objection,  he  alleges,  in  his  memorial,  that  although  a  natural- 
ized citizen  of  the  United  States,  yet  he  was  born  in  England,  and 
hence  he  argues  that  by  a  well  established  rule  of  British  law  he 
is  a  British  subject,  and  entitled  to  all  the  rights  as  such.  This 
ground,  the  learned  American  counsel  observes,  is  taken  by  Dawson's 
assignee,  and  gives  me  to  understand  that  he  places  the  right  to  make 
the  claim  on  other  grounds. 

Whatever  may  be  the  ground  assumed  now,  this  was  taken  by  the 
counsel  who  signed  the  declaration,  and  whether  assignee  or  not,  he 
was  authorized  to  act  for  the  claimant,  and  in  the  previous  argument 
of  this  case  the  counsel  lor  her  Majesty's  government  endeavored  to 
sustain  the  jurisdiction  upon  this  basis.  But  now,  it  is  said,  this 
ground  is  abandoned,  and  the  American  counsel,  who  has  argued  the 
case,  says  he  never  dreamed  of  contending  that  an  English  subject,  by 
birth,  who  had  become  a  naturalized  citizen  of  the  United  States,  was 
not  to  be  considered  an  American  citizen  in  the  meaning  of  this  con- 
vention. 

In  that  view  it  seemed  to  me  im])o.ssible  that  this  claimant  had  a 
right  to  invoke  the  authority  of  this  commission ;  but,  after  heari'ig 
the  argument  of  the  counsel,  I  find  that  the  ground  originally  taken 
is  only  ostem^ibly  surrendered.  It  will  be  borne  in  mind  tho* 
Freuri.k  Dawson  made  the  original  contract  with  Texas,  and  that 
he  conveyed  to  his  brother  Pli'l  p,  his  partner  in  trade,  in  Baltimore, 
an  interest  in  these  bonds;  the  whole  of  which  became  the  property 
of  the  iirm.  They  both  took  the  benefit  of  the  bankrupt  act,  and 
their  property  went  into  the  hands  of  an  assignee;  and  it  is  con- 


CONVENTION    WITH    GREAT  BRITAIN. 


389 


Jeneral  of 
I  the  case 

dressed  to 
tea  that  he 

1824,  and 
he  terms  of 
\Q  claims  of 
ited  States ; 
himself  the 
I  maintain  a 
anticipation 
h  a  natural- 
n gland,  and 
itish  law  he 

such.  This 
hy  Dawson's 
right  to  make 

taken  hy  the 
lee  or  not,  he 
:ou8  argument 
endeavored  to 
t  is  said,  this 
las  argued  the 
ish  subject,  hy 
ted  States,  was 
ng  of  this  con- 
aim  ant  had  a 
after  heari-ig 
viginally  taken 
in  mind    tl»o^ 
cxas,  and  that 
;,  in  Baltimore, 
.10  tiio  property 
krupt  act,  and 
and  it  is  con- 


tended that,  inasmuch  as  Philip  Dawson  was  never  naturalized,  their 
assignee  can  come  forward  and  make  a  claim  which  could  not  have 
heen  made  if  it  had  stood  in  the  name  of  Frederick,  the  original  con- 
tractor with  Texas.  That  is  to  say,  Frederick  Dawson,  a  naturalized 
citizen,  may  violate  the  well  known  principle  of  law,  and  do  that  in- 
directly which  ho  cannot  do  directly.  This  is  too  plainly  an  artifice 
on  the  part  of  the  learned  counsel  not  to  be  perceived  by  the  commis- 
sioners. This  claim  could  acquire  no  new  character  by  being  trans- 
ferred by  Frederick  to  Philip  Dawson,  and  then  coming  back  to  Frede- 
rick or  to  their  assignee.  Frederick,  who  made  the  contract  with 
Texas,  never  had  the  right  to  claim  payment  of  this  debt  before  this 
commission ;  and  Philip  could  therefore  possess  no  greater  right  in 
this  respect  than  belonged  to  the  original  contractoi-,  from  whom  he 
derived  his  title.  If  the  mere  transfer  of  a  claim  i'rom  an  American 
citizen  to  a  British-born  subject  could  give  this  commission  jurisdic- 
tion of  it,  then  every  claim  against  the  United  States  that  exists  any- 
where, in  the  hands  of  the  subjects  of  whatever  nation,  might  be 
brought  here  by  a  simple  transfer  like  that  which  took  i)lace  between 
Frederick  and  Philip  Dawson.  For  examj)le,  the  claims  of  citizens 
of  the  United  States  against  Mexico,  which,  by  treaty,  the  former  gov- 
ernment agreed  to  assume,  could  be  brought  here  for  settlement  by 
their  simple  transfer  to  a  British  subject. 

If  we  are  not  to  look  beyond  the  present  representative  of  the  claim, 
nor  to  investigate  the  manner  in  which  he  derived  his  title,  all  the 
claims  that  the  Spanish,  French,  or  the  subjects  of  any  other  country 
may  have  against  the  United  States  might  be  acted  upon  here  by 
adopting  this  principle.  Illustration  cannot  be  reiiuired  to  prove 
that  no  such  doctrine  is  recognized  by  the  rules  of  international  law, 
which  law  ought  to  furnish  the  rule  of  decision  •':.  this  commission. 

Frederick  Dawson  is  a  citizen  of  the  United  States,  entitled  to  the 
rights  and  liable  to  perform  the  obligations  which  that  relation  im- 
poses. But,  in  answer  to  this,  it  has  been  contended  that  he  owes 
like  duties  to  the  government  of  Great  Britain  ;  and,  in  consequence 
of  having  been  born  within  her  jurisdiction,  his  duties  to  this  govern- 
ment are  paramount.  There  is,  then,  a  direct  conflict  between  the 
municipal  laws  of  the  two  countries;  but  no  collision  can  arise  from 
this  apparent  conflict  of  laws  if  the  commissioners  should  take  the 
public  instead  of  municipal  laAv  for  their  guide. 


nii 


390 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


This  is  an  international  tribunal  sitting  here  under  a  convention, 
which  all  the  authorities  concode  is  to  he  interpreted  hy  the  law  of 
nations,  and  not  according  to  the  municipal  laws  of  either  country. 
The  claimant  resided  in  Baltimore  and  carried  on  business  there;  and, 
by  the  well  known  rule  of  international  laAv,  he  is  to  be  regarded  as 
a  citizen  of  that  country  where  he  had  his  domicil,  whether  he  be 
naturalized  or  not.  But,  besides  having  his  domicil  there,  he  had 
become  a  citizen ;  and  on  both  grounds  Frederick  Dawson  is  debarred 
from  presenting  his  claim  before  this  commission.  Nevertheless,  it  is 
asserted  thatPhilip  is  not  so  debarred  because  he  was  never  natural- 
ized. I  do  not  admit  that  Philip  Dawson  could  have  any  claim  at  all 
before  this  commission,  even  if  he  had  been  domiciled  in  England^ 
because  he  derived  his  title  to  these  bonds  wholly  through  his  brother, 
who  is  a  citizen  of  the  United  States. 

Yet,  notwithstanding  this  is,  infact^  the  claim  of  a  citizen  of  the 
United  States  against  his  own  government,  the  American  counsel 
for  her  Majesty  has  argued  in  favor  of  it,  and  has  referred  to  and 
attempted  to  answer  that  part  of  my  argument  in  the  Laurents'  case 
in  regard  to  the  right  of  domiciled  citizens  in  time  of  peace ;  and, 
although  I  have  already  discussed  this  question  before  the  commission, 
I  must  beg  indulgence  while  I  briefly  answer  the  learned  counsel's 
observations. 

Suppose,  then,  that  Philip  Dawson — who  was  a  merchant  in  Balti- 
more at  the  time  these  transactions  took  place,  and  had  been  for  the 
twenty-five  years  previous — had  made  this  contract  with  Texas,  could 
he  have  maintained  a  claim  before  tin's  commission?  If  he  is  not  a 
"  British  subject,"  within  the  moaning  of  these  terms  as  used  in  the 
convention,  he  clearly  could  not.  The  American  counsel  for  her  Ma- 
jesty insists  that  he  is  a  British  subject  in  the  sense  of  the  convention. 

The  rule  laid  down  by  him  for  the  interpretation  of  the  term  "  Brit- 
ish subject"  was  not  a  little  novel  to  be  addressed  to  a  tribunal  sitting 
for  the  administration  of  international  law.  Ho  said  "this  commission 
is  bound  to  declare  that  whoever  is  by  the  law  of  England  or  the  United 
States  subject  or  citizen,  is  to  be  considered,  under  this  treaty,  as  sub- 
ject or  citizen."  On  examination,  this  dictum  will  not,  I  apprehend, 
be  found  in  accordance  with  the  law  of  nations,  and  cannot,  therefore, 
furnish  a  rule  of  decision  for  this  commission.  He  refers  to  no  author- 
ity to  support  it,  for  the  reason  that  none  can  be  produced.     Neither 


It 

lati 

coij 

of 

to 

H» 

on 
seel 


CONVENTION   WITH   GREAT   BRITAIN. 


391 


ivention, 
10  law  of 
CDiintry. 
ere;  and, 
jarcled  as 
ler  he  be 
J  he  had 
;  debarred 
eless,  it  is 
sr  natural- 
laim  at  all 
England, 
is  brother, 

izen  of  the 
an  counsel 
rred  to  and 
urents'  case 
peace;  and, 
commission, 
ad  counsel's 

int  in  Balti- 
been  for  the 
Texas,  could 
■  he  is  not  a 
J  used  in  the 
for  her  Ma- 
convention. 
term"Brit- 
bunal  sitting 
;s  commission 
or  the  United 
•eaty,  as  suh- 
I  apprehend, 
ot,  therefore, 
to  no  author- 
ced.     Neither 


the  prize  courts  nor  the  publicists  of  any  country  have  ever  pretended 
that  the  municipal  l%\vs  of  either  of  the  parties  to  a  treaty  coiild  give 
the  rule  for  its  interpretation.  On  this  point  the  true  rule  of  inter- 
national law  was  declared  by  Sir  John,  now  Lord  Chief  Justice,  Camp- 
bell, in  Drummond's  case  before  the  privy  council.  He  says  that 
"  treaties  are  to  be  interpreted  according  to  the  law  of  nations,  which 
requires  words  to  be  taken  in  their  ordinary  meaning,  not  in  the  arti- 
ficial sense  which  may  have  been  imposed  upon  them  by  the  particular 
statutes  of  a  particular  nation.  When,  therefore,  a  treaty  speaks  of 
the  subjects  of  any  nation,  it  must  mean  those  who  are  actually  and 
effectually  under  its  rule  and  government." 

Was  Philip  Dawson  living  under  the  actual  rule  and  government 
of  Great  Britain  when  he  became  possessed  of  his  interest  in  these 
bonds?  It  is  not  pretended  that  he  was.  He  Wi>.s  residing  in  Balti- 
more, in  the  United  States,  and  had  been  for  many  years  previous, 
and  so  continued  till  his  death  ;  and  all  the  publicists  and  the  deci- 
sions of  the  prize  courts  regard  him  as  a  citizen  of  that  country.  Dr. 
Phillimore,  who  is  considered  as  authority,  especially  in  England, 
holds  this  doctrine  in  his  work  on  domicil.  He  says  expressly,  that 
"every  person  is  viewed  by  the  law  of  nations  as  a  member  of  that 
society  in  which  he  is  found." 

If  Dr.  Phillimore  stood  alone  in  this  view  of  the  law,  there  might 
be,  in  some  minds,  hesitation  in  assenting  to  it,  but  this  declaration 
is  supported  by  the  British  admiralty  decisions  for  half  a  century. 
Sir  William  Scott  has  repeatedly  confirmed  it  in  his  judgments,  and 
held  this  to  be  the  correct  interpretation  of  the  law  of  nations.  He 
so  decided  in  the  case  of  the  Matchless,  which  arose  in  time  of  peace, 
and  which  is  a  case  in  point ;  I  had  occasion  to  refer  to  it  fully  in  the 
argument  in  the  Laurents'  case,  and  will  not  now  further  allude  to  it. 
It  has  been  also  held,  by  Lord  Kcnyon,  that  persons  residing  in  Eng- 
land must,  for  the  purposes  of  trade,  be  considered  as  belonging  to  this 
country.  And  in  the  case  of  Wilson  vs.  Maryatt,  on  the  construction 
of  a  treaty  giving  the  citizens  of  the  United  States  the  right  to  trade 
to  the  British  possessions  in  the  East  Indies,  and  denying  this  privi- 
lege to  British  subjects,  it  was  then  decided,  that  a  British  born  sub- 
ject residing  in  the  United  States  could,  by  virtue  of  this  treaty,  carry 
on  trade  to  those  possessions,  while  a  British  subject  could  not.  This 
seems  to  me  conclusive  on  the  question  before  the  commission. 


h  J 


m 


392 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


It  is  an  authoritative  declaration,  that  a  person  living  in  the  United 
States  and  carrying  on  trade  there,  as  was  the  claimant,  Philip  Daw- 
son, is  not  a  British  suhject,  in  view  of  the  law  of  nations,  hut  a 
citizen  of  the  United  States. 

Having  shown,  therefore,  that  the  convention,  under  which  this  com- 
mission is  sitting,  must  be  interpreted  aacording  to  this  law,  it  follows 
that  the  claimant  is  not  a  British  subject  in  the  sense  in  which  these 
words  are  used  in  that  instnmient,  and  he  cannot  present  a  claim 
here  against  the  United  States. 

Wherever  the  point  has  arisen  in  the  British  courts,  the  decision 
has  been  invariably  to  the  same  effect.  I  should  regret  to  fatigue  the 
commissioners  by  citing  authorities  on  this  point;  as  I  might  well  do, 
for  they  are  all  in  support  of  my  position.  I  will,  however,  request 
them  to  refer  to  3  Rob.  Ad.  Rep.,  p.  8  of  the  Appendix,  where  it  will 
be  found  that  the  court  of  appeals,  after  a  very  full  hearing,  were  of 
opinion  that,  "by  the  general  law,  all  foreigners  resident  within  the 
British  dominions  incurred  all  the  obligations  of  British  subjects."  If, 
then,  by  the  public  law  which  regulates  the  intercourse  of  nations,  a 
foreigner  domiciled  in  Great  Britain  thereby  becomes  a  British  suhject, 
the  claimant,  Philip  Dawson,  being  domiciled  in  the  United  States, 
became,  by  this  same  law,  a  citizen  of  that  country. 

The  conclusion  from  this  authority  is  legitimate  and  inevitable,  and 
I  apprehend  it  must  have  escaped  the  learned  counsels  attention.  I 
cannot,  however,  make  the  same  excuse  for  him  in  regard  to  the  de- 
cisions of  the  Supreme  Court,  before  which  he  has  so  long  practiced 
with  distinguished  success.  That  court,  in  the  case  of  tie  Pizarro, 
reported  in  2d  Whoaton,  said,  witli  remarkable  emphasis,  that  in 
the  language  of  the  law  of  nations,  which  is  always  to  be  consulted 
in  the  interpretation  of  treaties,  that  "a  person  domiciled  in  a  country 
and  enjoying  the  protectioja  of  its  sovereign  is  deemed  a  subject  of 
that  country. ' ' 

According  to  both  the  British  and  American  autliorities,  Philip 
Dawson  was  a  citizen  of  the  United  States  Avhen  he  became  possessed 
of  his  interest  in  this  alleged  claim,  and  so  continued  till  his  death; 
and  no  one  can,  therefore,  a[)pear  before  this  commission  in  his  behalf. 
He  enjoyed  the  privileges  of  other  citizens  living  under  the  {govern- 
ment of  that  country,  and  it  would  be  neither  in  conformity  with  law 
or  equity  to  give  him  greater  advantages.     If  he  lias  a  claim  against 


the 

Till 

yet 


CONVENTION   WITH  GREAT   BRITAIN. 


393 


United 
p  Daw- 

1,  but  a 

bis  com- 

fc  follows 

cb  tbese 

a  claim 

decision 
,tigne  tbe 
t  well  do, 
r,  request 
ere  it  will 

2,  were  of 
witbin  tbe 

jects."  If, 
nations,  a 
sb  subject, 
ted  States, 

italjle,  and 
,ention.     I 
to  tbe  de- 
practiced 
Pizarro, 
tbat  in 
le  consulted 
n  a  country 
a  subject  of 

ties,  PWlip 
le  possessed 

bis  deatb ; 

bis  bebalf. 
tbe  ('overn- 
ity  witb  law 
laim  against 


.e 
iis, 


tbe  United  States  be  ougbt  to  be  required  to  seek  tbe  same  mode  of 
redress  as  otlier  citizens.  As  a  mode  of  testing  tbis  question,  tbo 
learned  counsel  asks  wbetber,  if  Pbilip  Dawson  bad  gone  to  Mexico 
and  received  an  injury  from  tbat  government,  he  could,  witli  success, 
have  appealed  to  the  United  States  ibr  redress.  Probably  not ;  tbat 
would  depend  entirely  on  tbe  character  of  the  injury  complained  of. 
Complaint  may  be,  and  often  is  made,  when  the  umuicipal  laws  of  tbo 
coimtry  where  it  is  inflicted  furnish  redress,  and  in  that  case  interpo- 
sition by  any  nation  is  unjustifiable.  In  order  to  justify  the  interpo- 
sition in  favor  of  a  citizen,  the  person  must  have  been  deprived  of  some 
right  secured  to  him  by  the  law  of  nations  or  by  treaty.  But  whore 
the  intervention  is  on  behalf  of  one  who  is  not  a  citizen,  tbe  law  of 
nations  alone  must  have  been  infringed.  That  law  is  imder  tbe  guar- 
dianship of  all  civilized  nations  ;  and  whenever  its  obligations  are  dis- 
regarded, it  is  the  duty  of  each  to  cause  ])roper  reparation  to  be  made. 
There  is  a  sentiment  in  (be  human  heart  that  makes  every  one  look  to 
the  land  of  his  birth  or  adoption  for  protection  when  wrongoil  in  a 
foreign  country,  and  it  has  been  usual  foi-  nations  to  hearken  to  this 
appeal  from  their  own  people  more  readily  than  from  others  not 
standing  in  the  same  relation  ;  yet,  if  in  tbo  supposed  case,  of  a 
British-born  subject  having  been  wronged  in  Mexico,  the  injury  done 
to  the  law  of  nations  bad  been  of  a  serious  character,  then  the  United 
States  would  have  interposed. 

Suppose  that  England  and  Russia,  noAv  at  war,  should  commence 
to  put  their  prisoners  to  death^  to  use  poisoned  weapons,  or  to  poison 
the  wells  and  springs  of  water;  that  would  be  a  violation  of  inter- 
national law  which  would  demand  not  only  the  interference  of  the 
United  States,  but  of  the  whole  fomily  of  nations.  No  matter  wliero 
the  persons  injured  might  have  been  born,  or  to  what  country  they 
might  have  sworn  allegiance,  the  interposition  would,  nevertheless,  be 
obligatory.  So  that  the  rule  of  national  law,  making  every  person  a 
citizen  of  that  country  where  he  is  found,  does  not  prevent  the  inter- 
position of  his  native  country,  or  any  other  nation,  in  his  behalf, 
whenever  the  rights  to  which  I  have  refei-red  have  been  seriously 
invaded. 

The  fact  of  interposition  is  by  no  means  conclusive  evidence  that 
the  persons  in  whose  behalf  the  government  has  acted  are  its  subjects. 
The  British  government  interposed  in  favor  of  the  Amistad  negroes, 
yet  it  will  hardly  be  contended  that  they  were  British  subjects !    The 


'r 


H 


894 


ADJUSTMENT   OF  CLAIMS   UNDER  THE 


appeal  to  another  government,  then,  in  ftivor  of  a  person  that  is  sup- 
posed to  have  been  injured,  proves  nothing  in  rej^urd  tohiscitizeuHhip. 

It  has  been  intimated  that  if  Frederick  Dawson,  a  naturalized  citi- 
zen of  the  United  States,  had  returned  to  Enghiud  and  regained  his 
domicil,  and  had  presented  a  claim  to  this  commission  as  a  British 
subject,  I  would  have  held  up  his  naturalization  papers,  and  would 
have  said  he  is  estopped  from  presenting  his  claim  on  account  of  his 
having  become  a  citizen  of  the  United  States.  In  this  supposition  the 
counsel  is  in  error.  I  would  have  taken  no  such  ground,  provided  the 
claimant  had  in  good  faith  and  at  the  proper  time  changed  his  alle- 
giance, and  had  presented  a  claim  over  which  this  commission's  juris- 
diction extends.  I  hold  to  the  American  doctrine,  proclaimed  by  the 
American  Secretary  of  State  in  reply  to  the  Austrian  demand  for  the 
surrender  of  Koszta,  and  to  which  I  cannot  too  often  refer:  "The  citi- 
zen or  subject  having  faithfully  performed  the  past  and  present  duties 
resulting  from  his  relation  to  the  sovereign  power,  may  at  any  time 
release  himself  from  the  obligations  of  allegiance,  freely  quit  the  land 
of  his  birth  or  adoption,  seek  through  all  countries  a  home,  and  select 
anywhere  that  which  offers  him  the  fairest  prospect  of  happiness  for 
himself  and  his  posterity." 

The  counsel  has  relied  on  the  provision  in  the  Constitution  of  the 
United  States  which  authorizes  the  subjects  of  a  foreign  country  to  sue 
in  the  courts  of  the  federal  government  to  show  that  Philip  Dawson 
was  a  "British  subject."  That  provision  extends  the  judicial  power 
to  controversies  between  citizens  or  subjects  of  foreign  states  and  citi- 
zens of  the  United  States,  and  by  virtue  of  it  the  claimant  might 
have  availed  himself  of  this  privilege  of  an  alien  to  sue  a  citizen  in 
the  United  States  court ;  but  that  does  not  at  all  affect  the  question 
at  issue.  We  are  discussing  the  question  whether  a  person  domiciled 
in  the  United  States  is,  hy  the  Imo  of  nations,  regarded  as  a  citizen  of 
that  country.  Tlie  municipal  law  cannot  determine  that  question. 
The  fact  that  he  enjoys  there  the  privilege  of  suing  a  citizen  in 
the  United  States  courts  does  not  prove  him  to  be  a  British  sub- 
ject. The  same  privilege  is  possessed  by  all  aliens,  whether  they 
be  born  in  Great  Britain  or  elsewhere;  and  if  the  counsel's  con'.Vu'-ron 
be  correct,  that  the  enjoyment  of  this  privilege  proves  the  claimant  to 
be  a  British  subject,  it  would  also  follow  that  all  aliens  are  British 
subjects.     The  question  does  not  depend  upon  the  number  of  privi- 


cc 

cc 

tlJ 

thj 

Stl 

th| 

del 

tai 


is  sup- 
en  h1  lip. 
ceil  citi- 
ned  liis 

British 
I  would 
it  of  his 
ition  the 
aded  the 

his  alie- 
n's juris- 
ed  by  the 
id  for  the 
'  The  citi- 
ent  duties 
;  any  time 
it  the  land 

and  select 
ppiness  for 

tion  of  the 
mtry  to  sue 
lip  Dawson 
icial  power 
es  and  citi- 
mnt  might 
a  citizen  in 

le  question 
n  domiciled 

a  citizen  of 
it  question, 
a  citizen  in 
British  sub- 

bether  they 

8  con'.V^''''ioi^ 

claimant  to 

are  British 

her  of  privi- 


CONVENTION   WITH   GREAT  BRITAIN. 


895 


leges  conferred  by  the  municipal  law  upon  the  foreigner  domiciled  in 
the  country.  These  privileges  may  be  great  or  small,  and  the  enjoy- 
ment of  no  particular  right  can  give  the  recipient  of  it  a  higher  or 
different  consideration  in  the  view  of  the  public  law.  All  aliens  pos- 
sess the  right  of  suing  in  the  courts  of  England  ;  it  is  a  common  law 
right,  and  existed  also  in  the  States  of  the  Union  at  the  time  of  the 
adoption  of  the  federal  Constitution.  In  the  new  government  that 
was  established,  us  there  was  no  common  law  of  the  United  States, 
the  alien  might  not  have  had  free  access  to  the  national  courts  without 
that  provision  in  the  Constitution  ;  and,  as  the  government  of  the 
Union  was  charged  with  the  foreign  relations,  it  was  necessary  that 
it  should  have  the  administration  of  justice  in  respect  to  the  subjects 
of  other  countries.  But  the  Constitution  could  no  more  determine 
who  were  to  be  considered  citizens  of  the  country,  in  the  view  of  the 
law  of  nations,  than  it  could  determine  the  requisites  for  a  subject  of 
Great  Britain. 

The  learned  counsel's  mistake  arises  from  his  considering  the  laws 
of  the  country  where  the  person  resides  as  the  rule  of  international 
law.  By  this  law  the  claimant  is  a  citizen  of  the  United  States,  and 
there  can  therefore  be  no  legal  presentation  of  this  claim  by  Frederick 
Dawson,  nor  by  the  assignee  or  representative  of  Philip,  and  the 
commission  ought  therefore  to  refuse  to  coiiisiiler  it  altogether. 

The  next  point  to  which  1  desire  to  call  the  attention  of  the  com- 
missioners, and  which  is  also  an  objection  to  the  jurisdiction,  is  this; 

Neither  Dawson's  claim  nor  any  other  claim  against  the  republic  of 
Texas  was  committed  to  this  commission,  and  it  Avould  be  an  un- 
warrantable assum]jtion  of  power  to  take  jurisdiction  of  any  such 
claims. 

In  support  of  this  point,  I  would  first  call  the  attention  of  the 
commissioners  to  the  statement  made  here  by  the  learned  American 
counsel  for  her  majesty's  government.  He  has  recently  arrived  from 
the  United  States,  and  knows  what  has  been  done  there  concerning 
these  claims.  He  has  informed  you  that  the  Senate  of  the  United 
States  took  up  this  subject  during  the  last  session  of  Congress,  and  in 
the  month  of  July  of  this  year  passed  a  bill  for  the  settlement  of  the 
debts  of  Texas,  and  that  this  bill  did  not  pass  the  House  of  Represen- 
tatives because  it  was  not  reached  in  the  ordinary  course  of  proceeding. 

It  appears,  therefore,  that  the  very  Senate  which  ratified  the  con- 


I 


396 


ADJUSTMENT  OP  CLAIMS  UNDER  THE 


vention  under  which  this  commission  is  organized,  took  up  and,  so  far 
as  it  could,  disposed  of  the  whole  subject  in  which  all  these  claims  are 
embraced . 

Does  any  one  believe  that  such  proceeding  would  have  taken  place 
in  the  Senate,  if  that  l)i>dy  had  already  provided  a  tribunal  charged 
witli  the  adjustment  of  the  claims?  Does  not  this  statement  alone 
prove  that  these  claims  were  never  contemplated  when  this  convention 
was  before  the  Senate  for  approval  ?  And  as  the  British  commissioner 
has  held  that  the  convention  must  be  interpreted  according  to  the  inten- 
tion of  the  i)arties,  I  appeal  to  him  to  say  whether,  with  a  knowledge 
of  this  action  of  the  American  Senate,  and  the  fact  that  these  claims 
have  never  been  presented  to  the  United  States  by  the  British  govern- 
ment, he  believes  it  was  designed  to  give  the  commission  jurisdiction  of 
them.  If  the  proposition  to  present  the  debts  of  Texas  as  claims 
against  the  United  States  had  been  made  while  the  negotiation  of  the 
convention  was  pending,  I  venture  to  say  that  it  never  would  have 
received  the  assent  of  the  United  States  with  that  understanding  of  its 
provisions. 

These  debts  are  the  obligations  of  Texas,  contracted  while  an  inde- 
pendent republic,  and  in  determining  their  validity  and  extent  she  has 
a  riglit  to  be  heard;  and  I  shall  hereafter  show  that,  in  view  of  all  the 
circumstances,  it  is  little  short  of  an  insult  to  tlie  intelligence  of  this 
commission  to  ask  it  to  entertain  jurisdiction  of  such  claims.  If,  how- 
ever, the  commissioners  shall  undertake  to  do  so,  they  would  do  well 
to  consider  the  responsibility  which  they  assume.  The  decisions  of  this 
commission  are  to  be  binding  on  tlie  governments  of  our  respective 
countries ;  but  it  was  understood  that  it  should  keep  within  the  limits 
assigned  to  it.  The  judgments  of  no  tribunal  are  binding  when  it 
transcends  the  bounds  of  its  authority;  and  if  tliis  commission  should 
exceed  its  power,  its  acts  would  not  probably  be  an  exception  to  this 
rule.  Suppose,  for  example,  that  this  commission  should  decide  in  favor 
of  the  claim  of  an  American  citizen  to  be  the  lawful  heir  of  the  throne 
of  England.  Such  a  decision  would  hardly  be  regarded  as  coming 
within  its  assigned  duties;  yet  a  judgment  like  this,  in  regard  to  the 
sovereign  of  this  kingdom,  would  not  strike  the  government  of  Great 
Britain  witii  more  surprise  than  would  that  create  in  the  minds  of 
the  American  people  which  you  are  urged  to  render  against  the 
United  States.      Both  cases  are  equally  foreign  to  the  duty  and 


CONVENTION   WITH   GREAT  BRITAIN. 


397 


:1,  so  far 
lima  are 

on  place 
charged 
nt  alone 
iivcntion 
ttissioner 
he  inteu- 
lowledge 
se  claims 
I  govern- 
diction  of 
IS  claims 
on  of  the 
ivild  have 
ing  of  its 

3  an  inde- 
nt she  has 
of  all  the 
ce  of  this 

If,  how- 
Id  do  well 
ons  of  this 
respective 
the  limits 
(J  when  it 
ion  should 
ion  to  this 
ide  in  favor 
the  throne 
as  coming 
Tard  to  the 
nt  of  Great 
e  minds  of 
igainst  the 

duty  and 


! 


authority  of  this  commission,  and  would  alike  provoke  the  indignation 
and  disregard  of  the  British  and  American  governments. 

I  am  unwilling  to  helieve  tliat  the  cominisHion  will  so  wantonly  step 
beyond  the  limits  laid  down  for  its  guidance  into  a  wilderness  of  powr ; 
and  I  think  I  might  safely  leave  the  subject  without  further  obsei 
tion.     But  it  will  not  be  difficult  to  show  that,  whatever  may  be  the 
obligation  of  Texas  to  pay  tlicse  claims,  there  is  none  on  the  part  of 
the  United  States;  and  to  that  I  propose  now  to  direct  your  atteiition. 
The  second  of  the  resolutions  of  Congress  for  the  annexation  of  Texas 
to  the  Union  contains  this  provision:  "Said  Stato,  when  admitted  into 
the  Union,  after  ceding  to  the  United  States  all  jjiiblic  edifices,  turtifica- 
tions,  barracks,  forts  and  harbors,  navy  and  navy  yards,  dooks,  ma<y- 
azines,  arms,  armaments,  and  all  other  jjroperty  and  means  iiortaining 
to  the  public  defence  belonging  to  the  said  republic  of  Texas,  shall 
retain  all  the  public  funds,  debts,  taxes,  and  dues  of  every  kind  which 
may  belong  to  or  be  due  or  owing  to  the  said  republic;  and  shall  also 
retiiin  all  the  vacant  and  unapproju-iated  lands  lying  uithin^its  limits, 
to  be  applied  to  the  payment  of  the  debts  and  liabilities  of  the  said 
republic  of  Texas,  and  the  residue  of  said  lands,  after  discharging  the 
said  debts  and  liabilities,  to  be  disposed  of  as  said  State  may  direct; 
but  in  no  event  are  said  debts  and  liabilities  to  bi(Nime  a  charge  upon 
the  government  of  the  United  States." 

These  were  the  conditions  on  which  Texas  was  admitted  into  the 
Union.  She  agreed  to  pay  her  own  debts,  and  retained  ample  means 
for  that  purpose. 

In  the  year  1850,  the  United  States  purchased  from   Texas  her 
unappropriated  lands  for  the  sum  of  ten  millions  of  dollars.     The 
title  of  the  act  of  Congress  by  which  this  purchase  was  authorized 
is  important,  as  showing  the  intention  of  the  parties.     It  is  entitled 
"  An   act   proposing   to  the  State    of  Texas   the   establishment   of 
her  northern  and  western  boundaries,  the  relinquishment  by  the  said 
State  of  all  territory  claimed  by  her  exterior  to  said  boundaries,  and 
all  her  claims  upon  the  United  States,  and  to  establish  a  territorial 
government  for  New  Mexico."     One  of  the  declared  purposes  of  the 
act  is  the  relinquishment  of  all  claims  against  the  government  of  the 
United  States,  and  in  pursuance  of  this  purpose  the  first  section  begins 
by  stating  certain  propositions  to  ho  submitted  to  the  State  of  Texas, 
which,  when  agreed  to  by  the  said  State  in  an  act  passed  by  the  general 
assembly  thereof,  should  be  binding  upon  the  United  States.     One  of 


398 


ADJUSTMENT   OP  CLAIMS   UNDER   TUB 


'II 


if 


thcso  propositions  was  to  pay  Texas  ton  millions  of  dollars  for  her 
pul)lic  lands,  witli  the  proviso  that  tlio  United  States  should  retain 
half  that  aMioiint  till  the  creditors  of  Texas,  to  whom  the  revenues 
were  pledged,  tiiiould  file  releases  of  any  and  all  claims  that  they  might 
have  aj^ainst  the  United  States  with  the  Secretary  of  the  Treasury. 

The  <^oiieral  assembly  of  that  State  accepted  these  propositions. 
The  President  proclaimed  that  Texas  had  adopted  them,  and  hence- 
forth they  became  a  contract  between  the  United  States  and  Texas. 

The  proviso  leaving  the  five  millions  in  the  Treasury  of  the  United 
States  was  a  voluntary  concession  of  Texas  in  favor  of  her  creditors, 
which  gave  assurance  that  she  would  deal  fairly  by  them;  but  it  was 
in  no  manner  an  assumption  by  the  United  States  of  any  obligation  to 
pay  these  debts. 

The  third  section  of  this  same  act  precludes  any  such  construction 
as  that.  By  it  the  State  relinquishes  all  claim  upon  the  United  States 
to  pay  the  debts  of  Texas,  and  surrenders  to  the  United  States  her 
ships,  curftom-houses,  revenues,  and  other  public  property. 

It  would  be  extraordinary  if  Congress,  after  having  made  in  the  re- 
solutions of  annexation  this  special  exception  of  the  United  States  from 
any  liability  for  the  debts  of  Texas,  as  one  of  the  conditions  on  which 
she  should  come  into  the  Union,  and  repeated  this  condition  in  the  act 
of  1850,  should  in  the  same  act  bind  the  United  States  to  pay  these 
identical  debts.  That  State  has  set  up  no  such  pretcKsion  nor  made 
any  claim  against  the  United  States  under  this  law,  and  I  apprehend 
slie  will  make  none. 

It  is  a  historical  fact,  admitted  here  by  the  counsel  for  her  Majesty, 
that  Texas  at  the  time  of  her  admission  into  the  Union  was  an  indc- 
pondeiit  republic,  and  so  acknowledged  by  all  the  leading  powers  of 
the  world.  In  the  exercise  of  her  right  of  sovereignty,  she  accepted 
the  conditions  proposed  by  the  United  States  for  her  entry  into  the 
Union  as  a  State  ;  one  of  which  was  that  she  should  surrender  her 
revenues  arising  from  imports  and  nay  her  debts  from  her  other  re- 
sources. But  it  is,  nevertheless,  alleged  in  reply  to  this,  by  the  Brit- 
ish counsel,  that  Texas  had  no  power  to  make  this  surrender  to  the 
United  States.  The  argument  to  sustain  this  allegation  is,  that,  having 
pledged  the  revenues  of  the  republic  for  the  payment  of  its  bonds, 
the  iiiii)osts  were  thereby  specially  pledged,  and  Texas  could  not 
assume  the  responsibility  of  paying  these  debts  from  any  other  source, 


CONVENTION    WITH  GREAT   BRITAIN. 


39P 


H  for  her 
111  ntrtin 

revenues 
\ey  might 
easury. 
(positions, 
ind  hence- 

Texas. 
;ho  United 

creditors, 
but  it  was 
(ligation  to 

9nstruction 

lited  States 

States  lor 

le  in  tlip  re- 
States  from 
18  on  which 
n  in  the  act 
to  pay  these 
>n  nor  made 
1  apprehend 

her  Majesty, 
was  an  indc- 
ng  powers  of 
she  accepted 
ntry  into  the 
urrender  her 
her  otlier  rc- 

l)y  the  Brit- 
•ender  to  the 
,  that,  having 
of  its  bonds, 
IS   could   not 

other  source, 


and  thus  relievo  this  branch  of  the  revenue  frcm  liability.  Botli  th« 
American  counsel  for  lier  Majesty  and  Mr.  Corwin,  tlio  Seen  v  of 
tliu  Treiisury,  argue,  tliat  if  imposts  are  not  specially  pledged  under 
tlie  term  revenues  useil  in  the  bonds,  then  the  same  principle  must  ap- 
ply to  all  the  otlier  sources  of  revenue;  and  hence  the  conclusion  would 
follow  that  the  pledging  of  all  the  revenues  is  not  the  pledging  of 
anything.  The  fallacy  of  this  reasoning  is  to  be  fovmd  in  the  assump- 
tion that  if  imposts  are  not  specially  pledged  they  are  not  pledged 
at  all. 

Texas  never  contended  tliat  the  revenue  from  imjwsts  was  not 
pledged,  but  she  maintained  that  it  was  not  so  specially  pledged  that 
she  could  not  appropriate  this  revenue,  dispose  of  it,  or  cause  it  to  cease 
altogether.  The  very  contracting  of  a  debt  by  a  government  is  a  pledg- 
ing of  the  faith  and  revenues  of  the  nation;  and  if  there  be  no  remain- 
ing power  to  change  the  tax  on  articles  from  which  revenues  are  col- 
lected, or  to  dispose  of  any  one  branch  of  its  revenues,  neither  can  there 
remain  the  power  to  charge  it  with  the  payment  of  any  new  debt,  for 
that  would  be  a  disposition  of  a  part  of  the  revenue  which,  according 
to  the  argument,  is  mortgaged  for  the  payment  of  the  first  debt.  The 
revenues  of  England  are  pledged  for  the  payment  of  the  interest  on 
her  debt,  and  yet  she  assumes  to  change  at  will  the  sources  from 
which  they  are  collected.  Modifications  have  taken  place  in  her 
tariff",  and  articles  which  were  once  taxed  are  now  free. 

If  England  may  take  the  impost  ofl^one  article,  she  may  take  it  off 
the  whole,  and  then  the  source  of  revenue  would  be  destroyed.  Texas 
was  as  independent,  and  possessed  the  same  rights,  as  England,  when 
this  transaction  took  place ;  and  she  did  nothing  more  than  England 
claims  the  authority  to  do. 

It  is  not  the  practice  of  nations  to  consider  the  contracting  of  one 
debt  as  precluding  them  from  contracting  another,  without  infringing 
the  rights  of  their  first  creditors;  and  nowhere  ought  this  to  be 
better  understood  than  in  England.  The  general  rule  undoubtedly 
is,  that  a  nation  possesses  the  liberty  of  satisfying  its  debts  from 
any  part  of  its  re\  enues ;  and  when  any  portion  of  them  is  sold  or 
disposed  of,  it  assumes  the  responsibility  of  paying  the  debt  in  some 
other  mode,  and  the  purchaser  takes  the  part  so  conveyed  free  of 
incumbrance.  Suppose  that  Belgium  had  pledged  her  revenues 
for  the  payment  of  a  debt,  and  that  she  had  united  herself  to  Eng- 


i 


l.!l 


400 


ADJUSTMENT  OF  CLAIMS  UNDER   THE 


I! 


m 

lis 

"n  If! 


I 


land,  retaining  hor  Kopanvtc  f^ovornmcnt,  and  givln;?  to  England  the 
power  to  carry  on  the  lorei^'n  relations  of  both,  and  Delgiinn  Hhould, 
for  a  consideration,  transfer  also  jior  duties  on  imports,  and  say  we  can 
pay  our  debts  I'rotn  anotiier  souree  of  revenue,  would  any  one  deny 
ikdgiuMi  this  right?  I»ut  it  is  aUeged  wo  cannot  impair  the  Kecurity 
on  which  the  loan  was  granted.  I  have  already  shown  that  the  na- 
tions of  Europe  do  not  stop  at  one  or  two  loans,  but  regard  the  jtowor 
of  the  nation  as  coniidete  to  make  a  third  as  if  they  had  not  made  any. 
li'  the  power  exists,  as  I  have  said,  to  charge  the  revenue  with  ne^^ 
loans,  I  do  not  perceive  why  it  may  not  also  exist  to  diminish  the  se- 
curity of  the  first  takers  of  a  loan  by  selling  a  branch  of  the  revenues. 
There  might,,  however,  be  a  failure  to  pay  by  this  diminution,  and  so 
there  might  be  by  an  augmentation  of  tlie  amount  of  the  debt  to  be 
paid.  The  failure  in  either  case  would  be  a  gross  breach  of  faith,  and 
the  remedy  would  be  the  same  in  both  instances — remonstrance  to  the 
government  whose  obligations  had  not  been  fulfilled,  and  proclaiming 
its  inevitable  disgrace  before  the  civili/ed  world. 

The  counsel  for  her  Majesty's  government,  Mr.  Cairns,  who  first 
argued  this  case,  said  that  by  taking  Texas  into  the  Union  the  claim- 
ants had  been  deprived  of  their  remedy.  This,  I  apprehend,  is  not  so. 
They  may  go  to  the  government  of  Texas  and  make  any  representa- 
tion now  that  they  could  have  made  when  that  8tate  was  an  indepen- 
dent republic. 

Mr.  Corwin,  the  Secretary  of  the  Treasury,  in  his  report  on  the 
construction  of  the  act  of  Congress  ceding  the  public  lands  to  the 
United  States,  attempts  to  maintain  that  the  incorporation  of  Texas 
into  the  Union  rendered  the  United  States  liable  for  a  portion  of  her 
debts — namely,  that  for  which  the  revenues  were  especially  pledged. 
He  says:  "  When  an  independent  power  contracts  obligations,  and  is 
afterward,  by  act  of  another  power  jointly  with  herself,  incorporated 
into  and  subjected  to  the  dominion  of  the  latter,  whereby  the  national 
responsibility  of  the  lormer  is  destroyed,  and  the  means  of  fulfilling 
her  obligations,  to  the  extent  at  least  of  the  means  thus  transferred, 
ttttacli  with  all  their  force  to  the  nation  to  whom  such  means  have 
been  so  transferred." 

This  argument  is  taken  from  European  writers  on  international 
law,  and  refers  to  States  or  provinces  that  have  boen  consolidated 
under  one  government — such  as  the  union  of  Scotland  and  England 


ter 


CONVENTION   WITH    GREAT   DRITAIN. 


401 


m\  the 

wo  can 

security 
the  na- 
10  \)ower 
in\oany. 
vitli  ncNN 
lU  the  sc- 
levenueB. 
n,  and  bo 
L\e\)t  to  be 
iaith,  and 
,nce  to  the 
roclaiminj; 

J,  who  first 

the  claim- 
d,  is  not  80. 

representa- 
iin  indepen- 

)ort  on  the 
ands  to  the 
on  of  Texas 
rtion  of  her 
\y  pledged. 

tions,  and  \» 
ncorporatcd 

tlio  national 
of  fulfilling 
transferred, 
means  have 

international 
consolidated 
and  England 


under  the  name  Par^iomont.     llut  tljcso  principles  do  not  apply  to  the 

peaceful  union  formed  by   tlio  United  States  with  tlie  republic  of 

TexftB,  nor  define  the  n  .sultinj;  (ddigations  of  either.     A  parallel  cnso 

to  the  one  ndopte<l  by  Mr.  Curwin  from  Ihe  European  publicists  would 

xist,  if  England  and  France  Hhould  unite  and  form  one  government, 

having  a  single  crown  and  legiHlature.     Then  the  obligations  which 

previously  rested  upon  each  would  bind  the  whole,  but  it  would  not 

be  the  case  if  each  i\  tained  its  separate  government,  and  England 

only  surrendered  to  France  the  power  to  conduct  the  foreign  relations 

of  both.     This  is  the  case  before  the  commission.     The  society  of 

Texas  is  not  merged  in  that  of  the  United  States.      It  retains  its 

distinct  government,  with  full  power  to  meet  all  its  obligations;  and 

the  law  of  nations  declares  that  when  this  is  so,  and  the  organ  of 

communication  is  only  changed,  the  rights  and  duties  of  the  society 

continue  the  same.     The  States  of  the  Union,  as  is  well  understood, 

all  have  the  power  to  borrow  money  and  severally  to  contract  debts, 

and  possess  ample  resources  for  paying  them ;  and  it  is  altogether  a 

new  idea,  having  no  foundation,  except  in  the  mindg  of  the  creditors 

of  Texas,  that  this  debt  is  transferred  to  the  United  States,  because 

their  government  is  the  organ  of  communication  with  foreign  nations 

for  all  the  States. 

In  the  previous  argument  of  this  case  her  Majesty's  counsel  con- 
tended that,  whatever  might  have  been  the  agreement  with  Texas 
when  she  entered  the  Union,  this  claim  was  in  the  nature  of  a  mort- 
gage upon  the  revenues  entire  ;  and  if  any  part  of  them  was  trans- 
ferred to  the  United  States,  they  were  taken  subject  to  this  lien.  The 
American  counsel  for  her  Majesty  has  taken  the  same  ground,  and 
they  both  rely  in  support  of  this  position  upon  the  report  of  Senator 
Pearce  made  upon  tliis  subject.  Mr.  Pearce's  argument  is  the  same 
as  that  of  Mr.  Corwin,  to  which  I  liavo  heretofore  referred,  and  v/hich 
I  will  state  in  his  own  languacre.  Ho  says:  "The  publicists  main- 
tain that  when  a  province  is  conquered,  and  the  conquest  is  consum- 
mated by  cession,  it  ceases  to  be  a  part  of  the  State  from  which  it  was 
wrested,  and  becomes  a  stranger  to  its  obligations.  But  in  that  case 
the  conqueror  acquires  no  rights  but  those  of  the  State  with  which  he 
is  at  war,  and  takes  subject  to  all  absolute  or  qualified  alienations 
previously  made.  Thus  the  King  of  Prussia,  when  he  had  acquired 
Silesia  by  conquest  and  cession ,  bound  himself  by  treaty  to  pay  the 

26 


V:l 


■ll 


;:f|,  ^ 


i  i) 


I 


i 


: 


'■    'i 


I' 


402 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


debts  for  wliicli  that  province  luul  been  mortgaged  to  British  subjects. 
JJut  without  such  express  sti])uhiti()n  Silesia  woukl  have  still  remained 
subject  to  the  mortgage,  tor  he  could  con(iuer  no  rigbts  but  such  as 
were  vested  in  the  enemy." 

This  may  be  true  in  regard  to  a  province  possessing  no  separate 
government,  and  yet  have  no  application  to  the  admission  of  Texas 
into  the  Union.  Let  us  see.  however,  the  manner  in  which  Mr.  Pearce 
and  the  learned  counsel  lor  her  Majesty  apply  the  argument.  The 
repor<^  continues  :  "  W  this  doctrine  be  true,  it  Avill  hardly  be  denied 
that  tJie  jieaceful  annexation  by  legislative  compact  of  one  nation  to 
another,  liy  which  the  pledged  revenues  of  the  one  have  been  trans- 
ferred to  the  other,  must  work  a  like  result,  and  that  the  power  which 
takes  such  pledged  revenues  must  take  them  ^Umm  oncre."  No 
analogy  can  be  traced  between  the  annexation  of  Texas  and  the  trans- 
fer of  Silesia  to  Prussia.  That  province  was  absolutely  merged  in  the 
kingdom  of  Prussia,  and  had  no  separate  and  distinct  government 
after  or  while  it  belonged  to  Austria,  and  consequently  no  means  of 
paying  a  debt. 

This  same  report  contains,  in  another  part  of  it,  the  answer  to  its 
own  argument,  and  that  1  shall  present  as  my  reply  to  the  report  itself. 

The  memorialists,  in  their  appeal  to  the  Senate,  alleged,  as  their 
first  ground  of  claim  against  the  United  States,  the  principle  that 
'*  when  one  nation  is  merged  in  another,  the  supereminent  power 
which  represents  the  individual  and  united  sovereignty  of  both 
becomes  responsible  for  the  debts  of  the  State."  This  principle,  Mr. 
Pearce,  in  his  report,  admits,  is  not  fairly  applicable  to  the  case,  for 
the  obvious  reason  that  Texas  is  not  merged  in  the  United  States,  but 
"retains  her  sovereignty  and  independent  existence,  with  full  power 
and  right  to  manage  her  own  separate  afltiirs;  still  liable  for  her 
debts,  to  the  payment  of  wliich,  according  to  the  terms  of  the  con- 
tract, she  has  pledged  her  faith,  her  revenues,  and  her  honor,  with 
full  capacity  to  contract  new  liabilities,  with  ample  resources  to  pay 
all  her  debts,  and  every  inducement  of  plighted  faith,  of  public 
character,  of  justice,  and  honor,  to  redeem  those  obligations."  This 
reasoning'  is  the  production  of  those  who  would  now  make  use  of  this 
commifision  to  shift  the  obligation  of  these  debts  from  Texas  upon  the 
government  of  the  United  States.  That  State  has  not  surrendered 
her  separate  government,  nor  parted  with  the  power  of  taxation.     In 


ag. 


no 
thej 


CONVENTION    WITH   GREAT   BRITAIN. 


403 


subjects, 
remained 
it  such  as 

)  separate 
I  of  Texas 
Sir.  Tearce 
leut.     The 
r  he  denied 
)  nation  to 
been  trans- 
ower  which 
ncre.''     No 
d  the  trans- 
jrged  in  the 
government 

10  means  of 

,nswer  to  its 
report  itself, 
cred,  as  their 
rinciple  that 
linent  power 
nty  of  both 
rinciple,  Mr. 
the  case,  for 
(d  States,  hut 
full  power 
iahle  for  her 
of  the  con- 
honor,  with 
ources  to  pay 
,h,  of  public 
ions."     This 
ke  use  of  this 
■xas  upon  the 
surrendered 

axation.    ^^ 


the  case  of  Silesia,  no  .separate  government  existed,  and  there  was 
absolutely  no  mode  of  paying  a  debt ;  yet  the  report  of  Mr.  Pearce, 
iun\  the  learned  counsel  who   have    adopted  it^  lose   sight  of  this 
distinction.     There  is,  in  fact,  no  similarity  between  the  two  cases. 
Silesia  was,  previously  to  the  transfer  to  Prussia,  under  the  govern- 
niout  of  the  Emperor  of  Austria,  and  was  a  mere  ])rovince  of  that 
empire,  possessing  no  independent  government.     Its  revenues  were 
collected  by  the  emperor's  officers,  as  the  revenues  of  any  county  in 
England  are  collected  by  the  officers  of  the  crown ;  and,  consequently, 
it  was  as  powerless  to  jiay  debts  as  the  wild  lands  Avhich  an  individual 
might  sell  to  his  neighbor.     The  emperor  of  Austria,  in  the  year 
1*735,  made   a  contract  with  certain  Englishmen  for  a  loan  to  him. 
By  the  contract,  he  bound  himself,  his  heirs,  and  posterity,  to  repay 
the  principal  with  interest,  and,  as  a  specific  security,  he  mortgaged 
his  revenues  arising  from  Upper  and  Lower  Silesia.     These  provinces 
were  ceded  to  Prussia  in  1T43,  and  the  king  bound  himself  by  treaty 
with  the  government  of  Austria  that  the  contract  in  regard  to  these 
revenues  should  be  faithfully  carried  out.      In  consequence  of  the 
seizure  and  confiscation  of  certain  ships  belonging  to  Prussia,  by  Great 
Britain,  Prussia  confiscated  the  debts  and  revenues  to  its  own  use, 
which  it  had  solemnly  guarantied  by  treaty  should  be  paid  over  to 
British  subjects  ;  and  the  question  was,  whether  Prussia  had  the  right 
thus  to  appropriate  these  revenues.    This  case,  therefore,  was  resolved 
into  the  simple  question,  whether  a  nation  could  repudiate  a  debt 
which  she  had  agreed  to  pay  by  express  treaty  stipulation.     No  sucn 
agreement  can  be  said  to  exist  between  Texas  and  the  United  States. 

I  can  conceive  that  a  case  similar  to  that  of  Silesia  might  have  arisen 
in  settling  the  northeastern  boundary  between  the  United  States  and 
the  British  provinces.  If,  for  example,  the  territory  ceded  to  Maine, 
by  England,  had  been,  by  treaty,  charged  with  a  debt,  and  the  United 
States,  in  accepting  the  territory  from  Great  Britain,  had,  by  treaty, 
agreed  to  pay  these  revenues  over,  this  would  be  the  case  of  the 
Silesian  loan,  and  the  United  States  would  be  in  the  position  of 
Prussia  in  1753,  when  the  controversy  took  place  in  regard  to  the 
Siles'an  loan.  But  it  must  be  evident  to  every  one,  who  has  any 
knowledge  of  the  manner  in  which  Texas  came  into  the  Union,  that 
no  such  transaction  took  place  ;  and  the  supposed  obligations  do  not, 
therefore,  devolve  upon  the  United  States. 


<.t 


n 


404 


ADJUSTMENT   OF   CLAIMS   UNDER   THE 


:i     i 


Upiiam,  United  States  Commissioner  : 

This  case  has  been  very  fully  and  ably  argued.  We  have  refrained 
from  limiting  the  discussion  to  the  question  of  jurisdiction,  as  we  pre- 
ferred the  case  should  be  submitted  to  us  for  consideration  in  all  its 
bearings. 

To  the  general  position  taken  by  the  counsel  for  the  claimants,  I  do 
not  feel  called  upon  to  object.  There  are  limitations,  however,  to  the 
broad  ground  on  which  they  have  placed  the  case  that  should  not  be 
overlooked  ;  and  there  are  also  matters  of  fact  relative  to  the  position 
of  Texas  under  the  United  States  government,  and  the  dealings  be- 
tween the  two  governments  in  reference  to  the  indebtedness  of  Texas, 
that  should  be  more  fully  considered  than  they  have  been  by  tliem  in 
arriving  at  the  true  measure  of  justice  and  equity  involved  in  the 
<!laim  presented. 

A  portion  of  these  facts  also  have  an  important  bearing  on  the  ques- 
tion, whether  the  class  of  claims  now  submitted  to  us  were  designed 
to  be  included  for  adjustment  under  the  convention  from  which  our 
powers  are  derived. 

It  may  be  conceded  that  the  claim  presented  is  substantiated  as  a 
just  debt  against  Texas.  Some  suggestion  has  been  made  as  tending 
to  throw  discredit  upon  it,  on  the  ground  that  a  large  bonus  was  given 
for  the  loan  in  this  and  other  cases.  It  is  undoubtedly  true  that, 
during  the  struggle  for  the  independence  of  Texas,  her  necessities,  and 
the  uncertain  nature  of  the  controversy  in  which  she  was  engaged, 
urged  her  to  the  contraction  of  loans  at  a  great  pecuniary  sacrifice, 
and  at  high  rates  of  interest.  The  inducements  held  out  to  obtain 
such  loans  were,  however,  no  greater  than  the  risk  of  compliance  with 
them  seenic'd  to  demand.  This  fact  furnishes  no  bar  to  the  claim  in 
any  manner,  and  sliould  not  limit  in  any  considerable  degree  the 
strong  grounds  of  equity  urged  for  its  payment. 

There  are  other  and  distinct  considerations,  however,  bearing  upon 
the  claim,  as  against  the  United  States. 

It  is  contended  that  the  United  States  is  rent  d  liable,  on  the 
ground  that  this  debt  was  secured  by  a  pledge  of  the  faith  and  reve- 
nues of  Texas,  and,  when  the  gpneral  sovereignty  of  Texas  as  a  nation 
was  transferred  to  the  United  States,  (involving,  as  of  course,  power 


3  refrained 
as  we  pre- 
L  in  all  its 

aants,  I  do 
ver,  to  the 
uld  not  be 
he  position 
ealings  be- 
3  of  Texas, 
by  them  in 
Ived  in  the 

)n  the  ques-  , 
re  designed 
1  which  our 

itiated  as  a 
as  tending 
s  was  given 

true  that, 
Bssities,  and 
as  engaged, 
ry  sacrifice, 
ut  to  obtain 
)liance  with 
he  claim  in 

legree  the 

earing  upon 

ble,  on  the 
h  and  reve- 
as  a  nation 
lurse,  pcvfcr 


CONVENTION   WITH   GREAT  BRITAIN. 


405 


over  the  revenues  of  Texas,)  the  Ignited  States  necessarily  assumed 
her  debts,  and  became  bound  in  fuU  for  their  payment. 

The  analogy  is  urged  that  a  private  creditor  has  a  right  to  receive 
payment  out  of  the  property  of  his  debtor  pledged  to  him,  and  may 
follow  it,  wherever  it  is  transferred  ;  and  that  a  pledge  of  this  or  that 
source  of  revenue,  where'  made  by  a  government  to  secure  its  indebt- 
edness, constitutes  an  incumbrance  or  lien  upon  it  in  like  manner. 
Such  revenue,  it  is  contended,  "cannot  be  alienated  without  transfer- 
ring with  it  the  incumbrance  of  the  debt ;  and  cannot  be  abolished  or 
lessened  till  the  debt  is  destroyed. ' ' 

Tiiis  analogy  exists,  and  yet  it  is  defective  in  important  respects. 
In  a  case  of  the  pledge  of  private  property,  the  creditor  can  claim  and 
assume  the  possession  of  it,  as  against  others,  and  avail  himself  of  it 
at  once,  for  what  it  is  worth.  Between  individuals,  this  transfer  of 
ownership  and  control  of  property  may  be  in  accordance  with  the 
highest  public  policy.  But  in  such  cases  it  should  be  borne  in  mind 
that  the  creditor  does  not  receive  his  debt,  he  only  gets  the  property 
pledged,  which  may  be  a  very  different  matter. 

In  the  case  of  a  pledge  of  the  public  revenues  of  a  State,  the  indi- 
vidual has  no  power  to  assume  control  over  them ;  it  would  be  sub- 
verting the  sovereignty  of  the  people  by  a  claim  of  money.  Another 
government  may  properly  receive  such  sovereignty  and  revenues,  and 
make  them  a  part  of  its  own.  By  so  doing,  however,  it  might  sub- 
ject itself  to  a  claim  for  the  full  amount  of  the  indebtedness  of  such 
State,  and  yet  equity  would  seem  to  bind  such  nation  only  to  the  fair 
value  of  the  revenues  pledged ;  and  it  may  well  be  questioned  whether 
the  rights  of  the  creditor  would  extend  beyond  such  value. 

It  is  a  well  settled  maxim,  that  whoever  asks  equity  must  do  equity, 
and  if  the  cretUtov  receives  the  full  worth  of  a  pledge,  which,  from 
the  necessity  of  the  case,  he  cannot  appropriate  to  himself,  can  he 
justly  complain  ?  It  is  by  no  means  clear  that  any  just  end  of  private 
right  or  public  good  would  justify  a  bar  to  international  union,  except 
on  full  liquidation  of  all  such  indebtedness. 

Furtlier,  this  case  has  been  argued  as  though  here  Avas  an  entire 
absorption  of  one  nation  and  its  revenues  by  another.  This  is  a 
wholly  inaccurate  view  of  the  fact.  Texas  is  still  a  sovereign  State, 
with  all  the  rights  and  capacities  of  government,  except  that  her  in- 
ternational relations  are  controlled  by  the  United  States,  and  she  has 
transferred  to  the  United  States  her  right  of  duties  on  imports. 


406 


ADJUSTMENT    OF  CLAIMS   UNDER   THE 


II 


The  revenue  of  a  country  is  defined  by  Webster  to  bo  "the  annual 
produce  of  taxes,  excise,  customs,  duties,  rents,  &c.,  which  a  nation 
or  State  collects  and  receives  into  the  treasury  for  public  use.  All 
these  powers  still  remain  to  Texas,  with  the  sole  exception  of  the 
levying  of  duties  on  imports.  There  is  no  merging  of  one  government 
within  the  other,  except  to  a  very  limited  extent.  It  is  a  very  differ- 
ent case,  therefore,  from  the  union  of  Ireland  and  Scotland  with  Eng- 
land, and  other  similar  instances  of  the  union  of  governments  to 
which  it  has  been  likened ;  and  is  subject  to  a  very  different  rule  of 
liability,  both  in  equity  and  justice. 

It  will  hardly  do  to  contend  that  a  pledge  of  imposts,  under  such 
circumstances,  ought,  rightfully  to  subject  one  nation  to  the  entire 
debts  of  another,  whatever  that  indebtedness  might  be,  or  that  inde- 
pendent nations,  while  contemplating  a  union  limited  as  this  is,  may 
not  make  the  subject  of  indebtedness  a  matter  of  such  arrangement 
between  them  as  shall  properly  apportion  this  liability.  If  such  an 
arrangement  be  made,  as  the  creditors  ought  clearly,  in  justice  and 
equity,  to  accept,  it  may  be  doubted  whether  a  just  interpretation  of 
international  law,  which  is  based  ou  the  highest  equity,  would  impose 
a  greater  measuio  of  obligation. 

International  law  must  conform,  in  some  degree,  to  the  necessities 
of  nations,  in  the  same  manner  as  the  rules  of  private  law  conform  to 
the  misfortunes  and  necessities  of  individuals.  I  do  not  make  these 
remarks  as  indicating  a  rule  of  adjustment  that  should  be  established 
between  the  United  States  and  Texas,  in  settling  these  claims ;  nor  do 
I  mean  to  intimate,  in  any  manner,  a  doubt  as  to  the  full  ability  of 
either  of  these  governments  to  fulfil  any  claims  against  them,  which 
is  a  matter  of  very  important  consideration  in  the  discussion  of  this 
subject.  I  merely  suggest  doubts  whether  the  doctrine  of  the  rights 
of  the  pledgor  and  pledgee,  as  maintained  by  the  counsel  in  this  case, 
can  be  followed  out,  in  all  cases  of  international  uuion,  without  limi- 
tations and  restrictions  applicable  in  some  degree  to  the  various  States 
and  conditions  of  the  nations  to  be  united. 

The  matter  of  the  indebtedness  of  Texas  was  a  distinct  subject  of 
agreement  l)y  the  terms  of  the  Union.  According  to  those  terms  the 
vacant  and  unappropriated  lands,  within  the  limits  of  Texas,  were  to 
be  retained  by  her,  "and  applied  to  the  payment  of  the  debts  and 
liabilities  of  the  republic  of  Texas,  and  the  residue  of  the  lands,  after 


di 


CONVENTION   WITH   GREAT   BRITAIN. 


407 


lie  annual 
I  a  nation 
use.  All 
)n  of  the 
»vernment 
ery  diifer- 
tvith  Eng- 
imcnts  to 
at  rule  of 

nder  such 
the  entire 
that  inde- 
is  is,  may 
•angeraent 
f  such  an 
ustice  and 
rotation  of 
lid  impose 

necessities 

onform  to 

ake  these 

stahlished 

;  nor  do 

ability  of 

m,  which 

on  of  this 

the  rights 

this  case, 

lOut  limi- 

ous  States 

subject  of 
terms  the 
s,  were  to 
iebts  and 
nds,  after 


18 


discharging  these  debts  and  liabilities,  was  to  be  disposed  of  as  the 
State  might  direct ;  but  in  no  event,  were  the  debts  and  liabilities  to 
become  a  charge  upon  the  government  of  the  United  States." — 
(United  States  Statutes  at  Large,  vol,  5,  p.  798.) 

The  lands  of  Texas  were  thus  specifically  set  apart  for  the  ])ayment 
of  the  debts  of  Texas,  hi/ agreement  of  the  tico  governments,  in  addition 
to  any  separate  pledge  Texas  had  previously  made  of  this  class  of  pro- 
perty, for  the  payment  of  her  debts. 

The  United  States  subsequently,  by  act  of  Congress,  on  the  9th  of 
September,  1850,  on  condition  of  the  cession  of  large  tracts  of  these 
lands,  agreed  to  pay  Texas  ten  millions  of  dollars,  but  stipulated 
"that  five  millions  of  dollars  of  this  amount  should  be  retained  in  the 
United  States  treasury  until  the  creditors,  holding  bonds,  for  which 
duties  on  imports  were  specifically  jiledged,  should  file  releases  of  all 
claims  against  the  United  States." — {United  States  Statutes  at  Large, 
vol.  9,  ch.  49,  p.  440.) 

It  thus  appears  that  the  United  States  has  acted,  from  the  outset,  in 
concert  with  Texas,  in  causing  express  provision  to  be  made  for  the 
payment  of  these  debts. 

A  difficulty  early  arose  in  carrying  the  law  above  cited  into  effect, 
for  the  reason  that  the  pledge  of  payment  of  the  debts  of  Texas  was 
made  generally  upon  her  revenues,  and  was  not  specific  ""on  imposts," 
€0  nomine;  and  for  the  further  reason  that  doubts  arose  whether  any 
portion  of  the  debts  could  bo  paid,  under  this  contract,  unless  the 
whole  could  be  discharged. 

These  questions  have  been  considered  at  much  length  by  the  advis- 
ing officers  of  government,  and  reports  have  been  made  on  the  subject 
bj  Mr.  Oorwin,  the  Secretary  of  the  Treasury,  and  more  recently  by 
Mr.  Gushing,  Attorney  General,  on  the  26th  of  September,  1853,  and 
a  bill  is  now  pending  before  Congress  for  the  better  adjustment  of  the 
matters  in  controversy.* 

The  reports  of  these  officers  are  confined  to  the  proper  construction 
of  acts  of  Congress,  assented  to  by  Texas,  in  reference  to  their  lands 
and  debts.  It  did  not  become  necessary  to  discuss  the  question  of  the 
liability  of  the  United  States  for  the  payment  of  the  debts,  and  such 

"  By  act  of  Congress,  passed  February  28,  1855,  ^7,750,000  was  appropriated,  subject  to 
certain  arrangements,  since  acceded  to  by  Te.xas,  for  tlie  piiymeut  of  Te.xan  claims. — (I/.  S. 
Statutes  at  Large,  vol.  10, ;».  G17 


408 


ADJUSTMENT   OF   CLAIMS   UNDER   THE 


discussion  was  expressly  waived  by  them  in  considering  the  subject. 
The  tendency  of  Mr.  Cushing's  opinion,  so  far  as  his  views  can  be 
gathered,  is  to  establish  the  liability  of  the  United  States  for  these 
debts  in  part.  Ho  says,  however,  that  it  "by  no  means  follows,  from 
the  action  of  the  United  States,  in  providing  for  the  payment  of  a 
portion  of  the  debts  of  Texas  from  the  proceeds  of  the  lands,  the  gov- 
ernment have  assumed  any  liability  thereby^  or  impliedly  recognized 
any  liability  on  their  part ;  or  that  any  less  readiness  will  be  shown  by 
Texas  to  fulfil  the  engagement,  in  regard  to  her  debts,  contained  in 
the  compact  of  her  admission  to  the  Union." 

I  have  thus  recited  at  length  the  facts  relating  to  the  indebtedness 
of  Texas  by  these  bonds ;  the  compact  between  the  two  governments, 
in  relation  to  this  indebtedness,  on  the  admission  of  Texas  into  the 
Union,  and  the  act  of  Congress,  and  measures  since  had  and  now 
pending,  upon  the  subject,  in  order  to  show  the  position  in  which  these 
claims  have  been  regarded. 

It  appears,  then,  that  at  the  time  of  the  Union  of  these  governments, 
and  from  that  time  to  the  present,  including  the  period  of  the  session 
of  this  commission,  the  subject  of  these  claims  has  been  considered 
solely  as  ii  matter  of  adjustment  between  the  United  States  and  Texas. 

The  indebtedness  of  Texas,  some  years  since,  was  conceded  to  be 
rising  ten  millions  of  dollars.  Whether  the  United  States  should  be 
liable  for  this  indebtedness,  I  do  not  feel  called  upon  to  decide.  It  is 
clear  Texas  is  not  exonerated  from  the  debt,  and  the  United  States  has 
manifested  a  strong  disposition  to  bring  about  its  adjustment. 

My  difficulty  in  this  case  is,  that  nothing  has  been  shown  to  us 
bringing  it  within  our  jurisdiction,  under  the  convention  of  1853. 

There  has  been  no  evidence  that  claim  has  been  made  on  the  United 
States,  through  the  agency  of  the  British  government,  for  the  payment 
of  this  class  of  debts.  Moreover,  it  has  not  been  the  policy  of  the 
ministers  of  eitlier  government  to  interfere  in  behalf  of  their  citizens^ 
in  the  case  of  deferred  payment  of  loans  to  other  governments ;  cer- 
tainly not  as  between  Great  Britain  and  the  United  States. 

This  question  had  not  been  brouglit  to  the  notice  of  either  govern- 
ment, or  been  made  a  matter  of  correspondence  and  difficulty  between 
them ;  neither  was  it  included  in  any  list  of  unsettled  claims  at  the 
date  of  the  convention. 

It  is  clear,  therefore,  to  my  mind,  for  these  reasons,  and  from  the 


le  subject. 
W8  can  be 
i  for  these 
lows,  from 
ment  of  a 
3,  the  gov- 
icco<;nized 
sliown  by 
itained  in 

[lebtedness 
ernments, 
s  into  the 
and  now 
hich  these 

.^ernments, 

the  session 

considered 

ind  Texas. 

ded  to  be 

should  be 

ide.     It  is 

States  has 

t. 

own  to  us 
1853. 
le  United 
payment 
icy  of  the 
r  citizens^ 
ents ;  cer- 


r  govern- 
y  between 
ims  at  the 


from  the 


CONVENTION   WITH   GREAT  BRITAIN. 


409 


contemporaneous  proceedings  between  the  United  States  government 
and  Texas,  as  to  these  claims,  that  they  had  not  been  considered  mat- 
ters of  international  controversy  with  Great  Britain,  and  were  not, 
within  the  intent  of  cither  contracting  party,  embraced  among  the 
outstanding  claims  to  be  acted  upon  by  this  commission. 

Evidence  is  shown  that  the  claim  has  been  presented  at  the  foreign 
office,  in  London,  since  our  session  here,  and  it  has  been  transmitted 
from  that  office  to  the  agent  of  the  Brltlsli  government  for  present- 
ment. This  could  hardly  be  refused,  if  requested,  under  the  rule  the 
agents  have  adopted.  At  the  same  time,  though  it  may  thus  be  said 
to  be  brought  within  the  letter  of  a  clause  in  the  convention,  it  does 
not  show  it  to  be  of  the  class  of  cases  which  had  been  acted  upon,  as 
requiring  international  adjudication. 

We  have  already  had  before  us  a  claim,  presented  in  like  manner, 
coming  within  the  letter  of  the  convention,  which,  on  full  argument, 
we  held  was  not  within  the  class  of  cases  designed  to  be  submitted  to 
us.  I  refer  to  the  case  of  William  CooJc  and  others,  citizens  of  the 
United  States,  who  claimisd  to  recover  against  the  British  government 
a  large  sum  in  their  custody  realized  from  the  sale  of  the  effects  of  Mrs. 
Frances  M.  Shard,  of  whom  they  alleged  they  were  the  sole  heirs. 
This  was  persisted  in  as  a  claim  of  citizens  of  the  United  States  against 
the  British  government. 

It  was  a  claim,  however,  of  a  character  such  as  had  never  been 
adopted,  and  acted  upon  as  a  matter  of  international  consideration, 
and  was  rejected  by  us  as  not  embraced  within  the  intent  of  the  con- 
vention.— (See  ante,  page  56.) 

The  agent  of  Great  Britain  filed  a  protest  in  that  case,  which  will 
be  found  in  the  appendix,  setting  forth  fully  the  reasons  why  jurisdic- 
tion should  not  be  entertained  by  us,  many  of  the  general  grounds  of 
which  will  apply  to  this  case. 

The  circumstances  of  the  two  cases  are  different,  but  the  decision  is 
in  point  that  mere  form  does  not  bring  a  claim  within  the  jurisdiction 
of  the  commissioners. 

In  my  opinion,  the  Texas  claims  were  not  designed  to  be  included 
in  the  commission,  but,  on  the  other  hand,  would  have  been  expressly 
excluded  had  there  been  any  belief  such  an  idea  would  have  been  en- 
tertained. 

With  such  views,  I  must  disclaim  jurisdiction  of  the  case. 


410 


ADJUSTMENT   OF   CLAIMS   UNDER   THE 


Hornby,  British  Commissioner: 

Tliis  claim  of  the  executors  of  the  late  Mr.  Holford,  a  subject  of  her 
Britannic  Majesty,  and  formerly  resident  in  London,  upon  the  gov- 
ernment of  the  United  States,  in  respect  of  certain  bonds  issued  to 
him  by  the  republic  of  Texas,  prior  to  its  annexation,  arises  under 
the  following  circumstances: 

In  the  year  1838  the  republic  of  Texas,  which  had  only  recently 
separated  itself  from  Mexico,  was  still  engaged  in  carrying  on  the 
war  with  that  country.  The  independence  of  Texas  had  not  at  that 
time  been  acknowledged  by  any  government  ))ut  that  of  the  United 
States.  The  resources  of  the  young  republic  were  slight,  and  the 
result  of  the  war  was  doubtful.  In  this  state  of  things  it  became  of 
the  utmost  importance  to  the  Texan  government  to  obtain  funds  to 
establish  an  efficient  naval  force,  to  prevent  its  ports  from  being 
blockaded  and  to  operate  upon  the  enemy's  coast.  Two  commission- 
ers, Mr.  Samuel  M.  "Williams  and  Mr.  A.  T.  Burnley,  were  therefore 
sent  to  New  York  in  October,  1838,  with  autliority  to  negotiate  a  loan 
for  the  republic  of  Texas. 

These  gentlemen,  it  appears,  found  considerable  difficulty  in  exe- 
cuting their  mission,  until  General  Hamilton,  of  South  Carolina,  who 
had  taken  a  very  active  part  in  the  war,  introduced  them  to  the  late 
Mr.  Holford,  who,  at  the  request  of  the  commissioners  and  General 
Hamilton,  agreed  to  advance  a  sum  of  money  for  the  purchase  of  a 
steam  vessel,  then  lying  in  the  port  of  Philadeli^hia,  called  the 
"  Charleston,"  to  have  her  brought  round  to  N"w  York  to  be  there 
altered  and  armed  as  a  vessel  of  war,  and  furnished  with  necessary 
stores,  and  then  to  send  her' at  his  own  risk  to  Galveston,  to  be  offered 
to  the  Texan  government. 

The  terms  upon  which  Mr.  Holford  consented  to  render  this  impor- 
tant service  to  the  republic  were  embodied  in  the  following  agreement : 

"Articles  of  agreement*  entered  into  in  the  city  and  State  of  New 
York,  this  24th  day  of  October,  1838,  between  General  James  Hamil- 
ton, of  South  Carolina,  as  the  authorized  agent  of  James  Holford,  of 
London,  of  the  first  part,  and  A.  T.  Burnley  and  Samuel  M.  Wil- 
liams, as  commissioners  authorized  by  the  republic  of  Texas  to  nego- 
tiate a  loan  of  money  for  the  said  republic,  under  the  provisions  of 


Agreement,  October  24,  1838. 


CONVENTION   WITU   GREAT    BRITAIN. 


411 


st  of  her 
the  gov- 
38ued  to 
es  under 

receutly 
;  on  the 
at  that 
0  United 
and  the 
ecame  of 
funds  to 
m  being 
imission- 
tliercfore 
te  a  loan 

^  in  exc- 
ina,  who 
the  late 
General 
ase  of  a 
lied  the 
be  there 
ecessary 
offered 

3  impor- 
eement : 
of  New 
Hamil- 
Iford,  of 
yi.  Wil- 
0  nego- 
sions  of 


an  act  passed  bj'  the  congress  of  Texas,  the  Ifith  of  May,  18:58,  of  the 
second  part,  witnossotli : 

"That  the  said  party  of  the  first  part  binds  and  obliges  liiniself  to 
purchase  the  steamer  'Charleston,'  now  lyini?  at  Pliiladolphia,  (in 
the  name  of  the  said  Hamilton,)  ]»rovided  tlie  said  boat  cuii  be  piir- 
chased  for  a  sum  not  to  exceed  thirty  thousand  dollars. 

"  The  party  of  the  first  part  further  binds  himself  to  have  the  said 
boat  repaired,  fitted  out,  provisioned,  A'c,  imder  tlie  management 
and  direction  of  Samuel  M.  Williams,  naval  agent  of  Texas,  and  to 
deliver  her,  with  all  convenient  dispatch,  at  Galveston,  in  Texas;  the 
whole  expense  of  which,  including  all  charges  and  expenses  up  to  the 
time  of  her  delivery  at  Galveston,  not  to  exceed  seventy  thousand 
dollars.  And  when  delivered  in  Texas,  the  said  boat,  her  provisions, 
munitions,  &'c.,  to  be  offered  to  the  government  of  Texas  for  their 
bond  for  double  the  amount  of  the  cost  of  the  boat  and  expenses 
incurred  up  to  the  time  of  her  delivery  at  Galveston,  payable  in  five 
years  from  date  at  the  Bank  of  the  United  States,  in  Philadelphia,  or 
in  London,  at  such  agency  as  Texas  may  engage  in  that  city.  The 
said  bond  to  bear  an  interest  of  ten  per  cent.,  payable  semi-annually. 

"  But  inasmuch  as  the  commissioners  to  negotiate  a  loan  of  monev 
have  no  authority  to  contract  for  the  purchase  of  a  steamboat,  although 
they  believe  the  government  of  Texas  would  be  much  pleased  to  pur- 
chase the  steamboat  *  Charleston,'  when  fitted  out  as  contemplated 
on  the  terms  herein  mentioned,  and  will  do  all  they  can  to  induce  the 
government  to  make  the  said  purchase ;  yet  as  the  government  will 
not  be  hound  to  do  so,  and  may  not  do  so,  therefore,  if  they  do  not,  as 
a  compensation  for  the  risk  which  the  party  of  the  first  part  is  com- 
pelled to  run  of  having  the  said  boat,  her  provisions,  munitions,  &c., 
left  on  his  hands,  when  he  does  not  desi'-e  to  hold  such  property,  the 
parties  of  the  second  part  bind  themselves,  as  they  have  authority  to 
do,  to  issue  two  bonds  of  the  republic  of  Texas  to  James  Hamilton  or 
order,  payable  in  five  years  from  date  in  the  Bank  of  the  United  States 
in  Philadelphia,  bearing  an  interest  of  ten  per  cent.,  payable  annually, 
the  two  together  to  be  for  a  sum  double  the  amount  of  the  cost  and 
expenses  of  said  boat  when  delivered  at  Galveston ;  which  bonds  shall 
be  forthwith  executed  in  blank,  and  deposited  Avith  N.  Biddle,  esq., 
president  of  the  United  States  Bank  at  Philadelphia,  who  shall  be 
directed  and  requested  to  fill  up  the  date  and  amount  as  he  may  here- 


412 


ADJUSTMENT   OF  CLAIMS  UNDER   THE 


after  bo  directed  by  the  joint  written  request  of  William  Brancker,  of 
New  York,  and  cither  of  the  aforesaid  commissioners,  after  they  shall 
have  ascertained  the  cost  and  expenses  of  the  boat  up  to  the  time  of 
her  delivery  at  Galveston,  and  that  the  government  declines  to  take 
the  said  boat;  which  said  bonds,  Avhen  so  filled  up,  Mr.  Biddle  shall 
be  directed  to  deliver  to  General  James  Hamilton  or  his  order  (at  any 
time  before  the  Ist  day  of  March  ne/t)  whenever  he  shall  deposit  in 
the  Bank  of  the  United  States  at  Philadelphia,  to  the  credit  of  the 
government  of  Texas,  half  the  amount  ot  the  face  of  the  said  two  bonds. 

**  The  parties  of  the  second  part  further  bind  themselves,  if  applied 
to  before  the  Ist  of  March  next,  to  substitute  in  place  of  the  two 
bonds  mentioned  above,  two  such  sterling  bonds,  with  the  necessary 
coupons.  \s  we  may  be  authorized  to  issue  under  the  laws  of  Texas, 
and  for  similar  amounts. 

"  In  testimony  of  all  which  the  parties  of  the  first  and  second  parts 
have  hereunto  subscribed  their  names  and  a£Sxed  their  seals  at  the 
date  first  above  written.  .. 

"  J.  HAMILTON,  [l.  s.] 
Authorized  Agent  of  James  Holford. 
A.  T.  BURNLEY.                  [l.  s.] 
SAMUEL  M.  WILLIAMS,    [l.  s.]  " 


The  stipulations  of  this  agreement  were  completely  fulfilled  by  Mr. 
Holford.  The  ''Charleston"  was  purchased,  fully  equipped,  and 
sent  to  Galveston,  to  be  accepted  on  the  terms  of  the  contract  by  the 
Texan  government,  if  it  should  think  fit  to  do  so. 

As  was  anticipated  by  the  commissioners,  the  acquisition  of  the 
"Charleston"  on  these  terms  was  deemed  highly  advantageous  by 
the  Texan  government.  A  receipt  for  the  vessel  and  her  appurte- 
nances was  given  under  date  of  the  23d  of  March,  1839 ;  and  an  act  of 
Congress  was  passed  on  10th  January,  1839,  for  the  special  purpose 
of  confirming  the  contract  which  the  commissioners  had  entered  into. 

In  recognition  also  of  the  value  of  Mr.  Holford's  assistance,  it  was 
further  '*  resolved  by  the  Senate  of  the  republic  of  Texas  in  Congress 
assembled,  that,  as  a  manifestation  of  the  sense  entertained  by  this 
body  of  the  very  liberal  and  friendly  conduct  of  Mr.  James  Holford, 
of  Great  Britain,  in  the  advance  of  funds  for  the  purchase  of  the 
steamer  "Charleston,"  that  the  thanks  of  Congress  be,  and  are 


CONVENTION   WITH   GREAT   BRITAIN. 


418 


cker,  of 
jy  shall 
time  of 
to  take 
le  shall 
(at  any 
posit  in 
t  of  the 

0  bonds, 
applied 

the  two 
ecessary 
[  Texas, 

•nd  parts 
is  at  the 

.s.] 
dford. 

.8.] 

.  8.]  " 

1  by  Mr. 
)ed,  and 
t  by  the 

n  of  the 

;eou8  by 

appurte- 

an  act  of 

purpose 

red  into. 

e,  it  was 

L/ongress 

by  this 

Holford, 

e  of  the 

and  are 


hereby,  tendered  to  Mr,  James  Holford,  and  also  that  the  honorable 
Secretary  of  the  Navy  bo  requested,  should  Mr.  Holford  visit  this 
country,  to  extend  towards  him  on  his  arrival  a  cordial  welcome  to 
our  shores." 

Nothing  tlien  remained  to  be  done  but  to  ascertain  the  amount  to 
which  Mr.  Holford  was  entitled  under  the  contract ;  and  accordingly 
two  persons  were  appointed  by  the  Texan  government  to  audit  the 
accounts  relating  to  the  purchase  of  the  "Charleston." 

These  persons,  on  tlie  24th  of  June,  1839,  reported  that  the  total 
amount  of  the  actual  cost  and  expenses  paid  by  Mr.  Holford,  in 
respect  of  the  "Charleston,"  was  $90,014  84. 

According  to  the  terms  of  the  agreement,  therefore,  coupled  with 
the  instructions  of  the  20th  of  March,  1839,  Mr.  Holford  became  en-' 
titled  to  receive  a  bond  from  the  government  of  Texas  for  the  sum  of 
^180,028,  payable  in  five  years,  with  ten  per  cent,  interest.  The  gov- 
ernment, however,  did  not  strictly  comply  with  the  conditions  of  the 
contract  as  to  the  mode  of  payment,  but  gave  Mr.  Holford  226  bonds, 
each  for  £100,  equal  to  £22,600;  and  31  bonds,  each  for  £250,  equal 
to  £7,550;  all  of  them  dated  the  Ist  July,  1839. 

These  bonds  were  in  the  following  form: 

"  Republic  of  Texas,  North  America. 

**  Ten  per  cent,  loan  for  five  millions  of  dollars,  with  an  annual  accumu- 

' '  lating  sinking  fund  of  |300,000. 

y'u  .,.;-,.,,■ 

* '  The  republic  of  Texas  hereby  promises  to  pay  to  the  bearer  the 
sum  of  two  hundred  and  fifty  pounds  sterling,  bearing  an  interest  of 
ten  per  cent. ,  per  annum,  payable  semi-annually,  on  the  first  days  of 

January  and  July,  at _,  on  the  delivery  of  the  proper  dividend 

warrants  in  the  margin  hereof.  The  faith  and  revenues  of  the  republic 
are  solemnly  pledged  for  the  payment  of  the  interest  and  principal  of 
this  loan,  according  to  the  several  acts  of  the  congress  of  Texas, 
passed  the  18th  of  November,  1836,  and  the  15th  of  May,  1838.  And 
there  is  moreover  specially  pledged  for  the  same  purpose,  by  an  act  of 
congress  passed  the  22d  of  January,  1839,  the  sum  of  three  hundred 
thousand  dollars,  to  be  reserved  annually  out  of  the  sales  of  the  public 
lands  as  a  permanent  and  accumulating  sinking  fund^  until  the  whole 
loan  has  been  paid  oif.  And,  in  case  this  bond  has  not  been  previously 


414 


ADJUSTMENT    OF   CLAIMS    UNDKR   TUB 


u 


reJceint'd  with  tlic  coiisenl  of  the  holder  by  the  opemtion  of  tlio  said 
Hiukiii^  fund,  the  republic  uf  Texas  uiidertiilves  imd  pri»tiiise8  that  it 
hIuiU  be  Hrmlly  piiid,  tof^etht-r  with  llie  iiitereHt  due  thereon,  at  the 
expiration  of  thirty  years  from  this  date  at  the  above. 

"  Tlie  holder  of  this  bond  is  moreover  entitled  to  the  privilege  at  any 
time  of  transferrin";  the  Kaine,  Avith  the  interest  due  thereon,  at  tho 
land  offiee  of  the  republic  of  Texas,  in  [)ayment  of  such  government 
lands  as  may  be  purchased  by  him  or  his  assignee  at  public  or  private 
sale,  at  the  minimum  government  price. 

"  In  tentimony  whereof,  the  president  t»f  Texas  has,  by  his  coiniuis- 
sioner.s,  signed  these  presents,  and  the  minister  of  tito  republic  of 
Texas  to  the  United  States,  at  Washington,  has  countersigned  tho 
same,  after  the  seal  of  the  republic  has  been  hereunto  atHxed,  at 
Philadelphia,  this  Ist  day  of  July,  1839. 

''  M.  11.  LAMAR, 
I' resident  of  the  liepuUiv  of  Texaa. 
IJy  J.   HAMILTON, 
A.  T.  BUKNLEY, 

Commissioners. 

R.  G.  UUNLAP, 

Minister  of  the  Hepuhlle  of  Texas 

to  the  United  States,  at  Washington." 

No  interest,  it  is  alleged,  has  been  paid  on  any  of  these  bonds,  and 
Mr.  Holford  has  never  received  payment  of  any  portion  of  the  debt 
thus  due  to  him  from  the  Texan  government. 

I  pause  here  for  a  moment  to  consider  the  position  of  Mr.  Holford, 
with  reference  to  the  independent  reimblic  of  Texas,  at  this  stage  of  the 
case.  He  had  advanced  his  money  on  the  faith  of  an  agreement  entered 
into  with  the  authorized  agents  of  the  Texan  government,  under  the 
provisions  of  an  act  of  the  republic  of  the  10th  of  May,  1838,  which 
stipulates  that  all  the  revenues  of  Texas  should  be  pledged  for  the 
purpose  of  li(iuidating  any  loan  or  contract  they  should  make — which 
agreement  wa.s  subsequently  ratified  by  an  act  of  the  10th  of  January, 
1839 — and,  in  accordance  with  the  stipulation  referred  to,  he  received 
bonds,  specifically  pledging  the  revenues  and  faith  of  Texas  for  their 
faithful  redemption ;  so  that,  beyond  the  guaranty  and  general  obli- 
gation to  pay  contained  in  the  agreement,  and  the  laws  of  tho  16th 


CONVENTION    WITH    OUEAT    MUITAIN. 


415 


of  May,  183S,  ami  tho  lOth  of  .luiiiiiiry,  18:5'.>,  Mr.  HoH'ord  liml  tho 
rcvoHueri  of  the  republic  Ht)loiniily  pliMlj-ed  to  iiiiii,  by  wuy  of  niortj^ago 
for  tho  piiyuierit  of  the  debt  creatotl  iti  the  manner  1  have  already 
detailed.  The  lej;al  liability  of  Texas,  immediately  pretediii<^  its 
admiHMiou  as  a  State  of  the  Tnioii,  to  |tay  the  debt  ineurred  to  Mr. 
Uolfurd,  was  complete,  i  do  not  understand  that  it  is  denied.  l>ut. 
an  arj^ument  has  been  preferred,  v  Ith  tho  view  of  showing  that,  so 
long  as  anij  Bourco  of  revenue,  or  an}  mt.iins  of  satisfying  the  (d)liga- 
tions  thus  entered  into,  remained  to  Texas,  the  United  Stat(  s  govern- 
ment are  not,  under  any  oireumstames,  liable.  Ttt  this  1  shall  have 
occasion  to  refer  hereafter. 

In  1845,  Texas  ceased  to  be  an  independent  republic,  and  was  ad- 
mitted  to  tho  Union  as  one  of  the  United  States;  and  the  whole  of  tho 
revenues  of  Texas,  arising  from  duties  on  imports,  together  with  tho 
navy,  &c.,  were  transferred,  in  accordance  with  the  provisions  of  tho 
Constitution  of  the  United  States,  to  the  federal  government. 

By  a  subse«iuent  act  of  Congress,  (September  9,  1850,)  which,  as 
between  tho  United  States  and  Texas,  after  she  had  become  one  of  the 
States  of  tho  Union,  settled  her  boundaries,  in  consideration  of  certain 
concessions  of  largv,  portions  of  the  public  lands  by  the  State  of  Texas, 
and  other  things,  it  is  provided  "  that  the  United  States  should  pay 
to  the  State  of  Texas  the  sum  of  ten  millions  of  dollars,  or  a  stock 
bearing  five  per  cent,  interest."  In  this  act,  however,  there  was  in- 
serted a  proviso  to  the  following  effect:  "That  no  more  than  five 
millions  of  the  said  stock  should  be  issued  until  the  creditors  of  the 
State,  holding  bonds  and  other  certificates  of  the  stock  of  Texas, /or 
which  duties  or  imports  were  speciaUy  ph</<jed,  should  first  file  at  tho 
Treasury  of  the  United  States  releases  of  all  claims  against  the  United 
States,  for  or  on  account  of  said  bonds  or  certificates,  in  such  form  as 
should  be  prescribed  by  the  Secretary  of  the  Treasury,  and  appioved 
by  the  President  of  the  United  States." 

Thus  it  appears  that  five  millions  of  the  money  to  be  })aid  to  Texas 
was  actually  retained  and  attached  in  the  hands  of  the  President,  to 
meet  the  acknowledged  liability  which  the  government  of  the  United 
States  had  incurred  by  admitting  the  new  State  into  the  Union,  and 
taking  from  it  the  principal  fund  (viz.,  the  import  duties)  out  of  which 
the  debts  were  to  be  satisfied. 

Notwithstanding,  however,  the  evident  object  of  this  proviso,  and 


416 


ADJUSTMENT   OF  CLAIMS  UNDER  THE 


the  meaning  which  the  United  States  have  attached  to  it,  as  evidenced 
hy  the  withholding  of  the  five  million  dollars,  an  argument  has  been 
advanced  to  the  eflfect  that,  inasmuch  as  the  special  pledge  is  of  all  the 
revenues  of  the  Territory,  the  duty  on  imports  thus  transferred  to  the 
United  States  (although  one  of  them,  and  indeed  the  most  important 
and  profitable)  was  not  specially  pledged  for  the  payment  of  this  debt, 
so  as  to  bring  it  within  tlie  proviso.  Thus  Texas  argued,  when  it 
sought  to  induce  the  government  of  the  United  States  to  abandon  its 
lien  on  and  to  pay  out  the  five  millions  retained  to  meet  the  creditors 
having  a  special  pledge  of  the  duties  on  imports.  In  answer  to  this 
argument,  however,  the  Executive  of  the  United  States  very  properly 
showed  that  a  special  pledge  of  nil  the  revenues  necessarily  included 
every  one  of  them,  and  operated  as  a  special  pledge  of  each  particular 
branch,  the  same  as  if  each  by  name  had  been  specially  appropriated. 
Mr.  Secretary  Corwin,  in  his  official  report,  explains  the  true  meaning 
of  the  proviso.  "It  seems  perfectly  clear,"  says  he,  "that  a  pledge 
of  'all  the  revenue '  of  a  government,  whose  organic  form  admitted  the 
power  to  raise  revenue  by  'duties  on  imports,'  is  a  special  pledge  of 
duties  on  imports  as  well  as  all  the  other  sources  of  taxation  known  to 
such  government.  If,  instead  of  a  pledge  of  the  '  revenues ' — a  term 
comprehending  every  item  of  the  revenue — another  form  of  expression 
had  been  adopted,  which  had  enumerated  each  item,  including  duties 
on  imports,  then  no  one  would  doubt  that  the  law  contained  a  special 
pledge  of  the  duties  on  imports. "  *^r  v/ 

"  "If,  then,  the  pledge  of  all  ^revenue,'  without  enumeration  of  items 
or  classes,  does  not  include  duty  on  imports,  neither  does  it,  for  the 
same  reason,  include  any  other  species  of  revenue  ;  and  thus  it  would 
follow,  that  nothing  was  pledged  by  the  act  in  question — an  absurdity 
too  flagrant  for  consideration.  Such  a  construction  would  admit  the 
po.ssibiHty  of  an  intention  by  the  Congress  of  Texas  to  hold  out  to  the 
world  a  delusive  promise,  seeming  to  bo  substantial,  and  yet,  in  fact, 
offering  no  real  security.  The  section  referred  to,  therefore,  must  be 
considered  as  pledging  speciilly  the  duties  on  imports,  as  any  other 
species  of  revenue  possible  under  the  government  then  existing.  If 
these  views  are  correct,  all  loans  negotiated  by  Texas  prior  to  the  14th 
January,  1840,  and  under  that  act,  are  secured  by  a  special  pledge  of 
the  dutie«  on  imports." 

^  A  similar  opinion  appears  to  have  been  expressed  by  Mr.  Gushing, 


CONVENTION  WITH  GREAT  BRITAIN. 


417 


ridenced 
las  been 
if  all  the 
id  to  the 
iportant 
his  debt, 
when  it 
indon  its 
creditors 
r  to  this 
properly 
included 
jarticular 
ropviated. 
!  meaning 
b  a  pledge 
mitted  the 
pledge  of 
known  to 
I ' — a  term 
expression 
ing  duties 
a  special 

)n  of  items 
it,  for  the 
18  it  would 
absurdity 
admit  the 
out  to  the 
et,  in  fact, 
e,  must  be 
any  other 
i  sting.    If 
;o  the  14th 
1  pledge  of 

.  Gushing, 


the  present  Attorney  General  of  the  United  States,  upon  the  same 
point  being  referred  to  him  by  the  Executive.  He  says,  "it  has  been 
suggested  that  the  pledge  of  '  all  the  revenues'  does  not  come  up  to 
the  condition  of  the  act  of  Congress,  for  which  duties  on  imports  were 
specially  pledged.  I  feel  constrained,  however,  to  agree  fully  with 
the  reasoning  of  Mr.  Corwin  as  to  this  point.  Omne  majus  in  se  mimts 
continet :  the  whole  includes  all  the  parts.  If  a  pledge  of  all  revenues 
be  not  a  pledge  of  duties  on  imports,  then  it  is  no  pledge  of  anything;  for 
you  may  strike  out  from  its  province  each  and  every  species  conprc- 
hended  in  the  genus  'revenue,'  by  force  of  the  same  reasoning  which 
strikes  out  duties  on  imports,  and  the  effect  would  be  to  annul  and 
altogether  defeat  the  whole  purpose  of  the  lawgiver." 

After  these  opinions,  assented  to  as  they  have  been  by  the  Executive 
of  the  United  States,  it  surely  does  not  now  lie  in  the  mouth  of  the 
latter  to  urge,  in  support  of  its  non-liability  to  pay  the  bondholders, 
the  same  argument  which  they  combated  and  disallowed  when  ad- 
vanced to  induce  them  to  pay  over  the  remaining  five  millions  due  to 
Texas,  but  specially  retained  to  answer  these  very  claims.  I  refuse, 
therefore,  to  believe  that  this  suggestion,  with  reference  to  this  general 
pledge  of  all  the  revenues  not  being  within  the  scope  of  the  proviso  of 
the  act  of  Congress  of  the  9th  of  September,  1850,  if  seriously  made, 
is  made  with  the  sanction  or  support  of  the  government  of  the  United 
States. 

On  the  contrary,  I  find  that  this  liability  has  never  been  denied  by 
the  government  of  the  United  States.  So  far  as  I  have  had  the  means 
aSbrded  me  of  knowing  anything  about  the  proceedings  of  the  Execu- 
tive of  the  United  States  in  reference  to  this  claim,  the  non-obligation 
to  pay  this  debt  is  noio,  for  the  firsf  time,  asserted  by  the  learned 
agent  of  the  United  States  on  behalf  of  his  government.  Before 
entering  upon  the  consideration  of  the  arguments  which  he  has 
thought  it  within  the  sphere  of  his  duty  to  address  to  the  commis- 
sioners, I  must  express  my  regret  that  I  have  not  been  favored  by  my 
colleague  with  the  reasons  which  weigh  upon  his  mind,  and  induce 
him  to  difier  in  opinion  with  me  on  the  justice  of  this  claim ;  but  as 
he  has  not  expressed  dissent  from  the  arguments  advanced  by  the 
learned  agent,  I  am  constrained  against  my  will  to  consider  that  he 
dao  Btttaches  weight  to  them,  and  it  thus  becomes  my  duty  to  give 

27 


418 


ADJUSTMENT   OF  CLAIMS   UNDER   THE 


lii 


■'^ 


n 


t  i.! 


i;  J  i ! 


them  that  consideration  to  which,  under  other  circumstances,  I  frankly 
confess  I  shoukl  not  conceive  them  to  be  entitled.  These  arguments 
are  put  in  the  form  of  a  protest  against  the  commissioners  assuming 
jurisdiction  of  any  claim  made  on  the  United  States,  arising  out  of 
bonds  issued  by  the  republic  of  Texas.  The  first  paragraph  in  that 
protest  asserts  that  this  claim  is  in  no  sense  "embraced  or  contemplated 
by  the  convention  of  the  8th  of  February,  1853."  Why  or  where- 
fore, however,  I  am  utterly  at  a  loss  to  imagine ;  and  the  learned 
agent  has  not  oflfered  us  any  arguments  to  show  how  these  claims  can 
be  excluded  from  our  consideration. 

It  is  perfectly  clear,  from  the  languge  of  the  first  section  of  the  con- 
vention under  which  this  commission  is  constituted,  that  we  are  bound 
to  entertain  it.  It  is  the  claim,  as  appears  by  the  memorial,  of  a  sub- 
ject of  her  Britannic  Majesty  upon  the  government  of  the  United 
States.  It  has  been  presented  to  the  government  of  her  Britannic 
Majesty,  for  its  interposition  with  the  government  of  the  United  States, 
and  it  has  also  been  presented  within  the  time  specified  by  the  third 
article.  This  is  all  that  is  requisite  to  give  us  jurisdiction;  and,  hav- 
ing jurisdiction,  we  cannot  allow  the  apprehension  of  "surprise"  or 
possible  but  highly  improbable  "excitement,"  which  the  American 
agent  fears  will  be  excited  in  the  United  States,  to  deter  us  from  en- 
tering upon  its  consideration,  and  deciding  it  "according  to  justice 
and  equity,  and  without  fear,  favor,  or  afiection  to  either  country." 

So  much  then  for  the  first  reason.  I  come  now  to  the  second  and 
third,  which  are  stated  with  equal  confidence,  and  have  reference  to 
certain  resolutions  passed  by  Congress,  and  assented  to  by  Texas  on 
the  admission  of  the  latter  into  the  Union  as  a  State,  and  which  de- 
clare that  "in  no  event  are  the  debts  and  liabilities  of  Texas  to  become 
a  charge  upon  the  government  of  the  United  States."  It  is  impossi- 
ble, however,  not  to  see,  that,  however  binding  as  between  Texas  and 
the  United  States  this  resolution  may  be,  and  however  much  it  may 
give  a  right  to  the  United  States  to  insist  upon  Texas  ultimately  in- 
demnifying her  for  any  debts  which  Texas  had  contracted  and  for 
which  the  United  States  might  be  liable,  and,  being  liable,  might  be 
called  upon  to  pay,  it  cannot  in  the  least  affect  the  rights  of  any  credi- 
tor of  Texas  to  follow  his  pledge,  and  attach  it  wherever  he  can  find 
it,  no  matter  to  whom  it  may  have  been  conveyed  or  under  what  con- 
ditions.   That  this  is  beyond  all  doubt,  a  very  little  consideration  of 


■ne^ 


CONVENTION   WITH  GREAT  BRITAIN. 


419 


rankly 
aments 
3uming 
;  out  of 
in  that 
nplated 
■  where- 
learned 
lims  can 

the  con- 
i-e  hound 
jf  a  sub- 
i  United 
Britannic 
jd  States, 
the  third 
and,  hav- 
•prise"  or 
American 
from  en- 
Ito  justice 
intry." 
icond  and 
sference  to 
Texas  on 
Iwliich  de- 
to  become 
.8  impossi- 
'exas  and 
Lch  it  may 
lately  in- 
and  for 
might  be 
any  credi- 
e  can  find 
what  con- 
leration  of 


the  position  of  all  mortgagees  will  sufficiently  show ;  and  Mr.  Holford 
stands  precisely  in  the  relation  of  a  mortgagee  to  the  revenues  pledged 
to  him.  The  rule  of  law  is  of  the  most  elementary  kind,  that  when 
once  any  property— as,  for  instance,  a  piece  of  land,  a  house,  or  a 
fund — is  charged  with  the  payment  of  a  debt,  anybody  purchasing  or 
otherwise  coming  into  possession  of  the  thing  so  charged  takes  it  cum 
onere,  that  is,  with  the  burden  upon  it,  or  subject  to  the  obligation  of 
paying  the  debt  out  of  it. 

Mr.  Gushing,  the  United  States  Attorney  General,  to  whose  opinion 
I  have  already  referred,  thus  clearly  and  concisely  expresses  himself 
on  this  point:  "A  public  creditor,"  says  he,  "  like  a  private  credi- 
tor, has  a  general  right  to  receive  payment  out  of  the  property  of  his 
debtor.  A  special  pledge  of  this  or  that  source  of  revenue,  of  this  or 
that  direct  tax  or  indirect  tax,  when  made  by  a  government,  renders 
such  source  of  revenue  like  a  mortgage,  or  deed  of  trust  given  by  a 
private  individual  to  his  creditors ;  a  specific  lien  or  fixed  incum- 
brance, which  the  government  ought  not,  in  justice  to  the  creditors,  to 
abolish,  k  '-on,  or  alienate,  until  the  debt  has  been  satisfied.  But  a 
public  del '  i  ke  a  private  one,  even  as  to  debts  secured  by  hypothe- 
cation of  .'.t'  ''!c  property  or  other  express  lien,  ought  not  to  deprive 
himself  of  the  means  of  payment,  as  the  two  governments,  that  of 
Texas  and  of  the  United  States,  abundantly  indicated,  as  well  by  the 
compact  of  annexation  as  by  that  for  the  change  of  boundaries."  If 
the  United  States,  as  between  itself  and  Texas,  without  reference  to 
the  creditor,  enter  into  an  agreement  by  which  the  latter  transfers 
from  herself  her  right  to  collect  these  duties,  and  vests  the  right  ex- 
clusively in  the  United  States,  can  it  be  said  that  the  United  States 
are  justified  in  holding  the  fund  so  pledged,  or  in  refusing  to  pay  the 
creditor  who  trusted  Texas  on  the  faith  of  the  security  antecedently 
pledged  to  him?  It  is  precisely  the  case  of  mortgage  of  real  or  per- 
sonal property.  The  mortgagor  contracts  debts  afterwards,  and 
mortgages  again,  or  transfers  by  sale  or  otherwise,  the  property  mort- 
gaged to  a  person,  with  or  without  notice.  In  such  a  case,  it  is  clear 
that  the  second  mortgagee  could  not  hold  the  fund  discharged  from 
the  incumbrance  upon,  nor  could  the  subsequent  creditor  claim,  to  be 
paid  out  of  the  fund  irrespective  of  the  first  mortgage.  If  there  were, 
therefore,  nothing  else  except  the  mere  existence  of  the  contract,  fol- 
lowed by  the  subsequent  appropriation  by  the  United  States,  under. 


420 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


„■ 


I! 


•>!'! 


m 


tli,o  subsequent  contract  between  herself  and  Texas,  of  the  fund 
pledged,  the  United  States  would  be  responsible  for  the  entire  value 
of  the  pledged  property  and  for  the  value  of  the  entire  debt. 

It  is  so  obvious  that  no  agreement  entered  into  by  a  debtor  with  a 
third  person,  that  that  third  person  shoiild  take  a  property,  the  sub- 
ject of  a  specific  charge,  free  from  all  liability  to  the  person  having  the 
charge,  can  be  binding  on,  or  in  any  way  affect  the  rights  of  the  indi- 
vidual to  whom  the  property  is  pledged,  that  further  argument  to 
prove  so  elementary  a  proposition  would  be  useless.  It  is  evident, 
therefore,  that  the  resolution  assented  to  by  Texas,  declaring  that  the 
United  States  shall  not  be  answerable  for  the  debts  of  Texas,  can  in 
no  way  legally  or  morally  affect  the  cla^'m  of  Mr.  Holford  on  the 
United  States. 

I  pass  on  to  the  fourth  objection  against  the  entertainment  of  this 
claim  by  the  commissioners,  which  is  thus  stated : 

"IV.  Because  it  is  not  true,  as  asserted  in  the  statement  of  the 
claim  presented  to  the  commissioners,  that  Texas  is  incorporated  into 
and  subjected  to  the  dominion  of  the  United  States  government,  so  as 
to  destroy  her  responsibility  for  her  debts  contracted  while  an  inde- 
pendent republic,  or  her  ability  to  meet  them  ;  but,  on  the  contrary, 
she  is,  for  the  purpose  of  fulfilling  these  obligations,  as  clearly  re- 
sponsible by  the  law  of  nations^  by  her  separate  and  distinct  society, 
and  by  her  solemn  agreement  with  the  United  States,  as  she  ever  was, 
and  fully  able  to  discharge  them  ;  and  this  commission  is  not  author- 
ized to  interfere,  to  shift  any  such  obligation  from  Texas  upon  the 
United  States." 

It  is  difficult  to  see  how  the  objection  bears  upon,  or  what  con- 
nexion the  reasoning  involved  in  it  has  to  the  facts  of  the  claim  before 
the  commissioners.  The  obligation  of  Texas  to  pay  her  debts  is  not 
in  dispute,  nor  has  it  been  argued  that  the  mere  act  of  her  annexa- 
tion to  the  United  States  has  transferred  her  liabilities  to  the  federal 
government ;  though  certainly,  as  regards  foreign  governments,  the 
United  States  is  now  bound  to  see  that  the  obligations  of  Texas  are 
fulfilled.  It  is  the  transfer  of  the  integral  revenues  of  Texas  to  the 
federal  government,  that  is  relied  on  as  creating  the  new  liability. 
The  shifting  of  the  obligation,  which  the  learned  agent  of  the  United 
States  warns  the  commissioners  they  have  no  authority  to  effect,  is  in 
fact  already  effected  by  the  United  States  itself. 


J.P 


-r^'^,'" 


CONVENTION  WITH  GREAT  BRITAIN. 


421 


he  fund 
re  value 

r  with  a 
the  sub- 
iving  the 
the  indi- 
ument  to 
I  evident, 
;  that  the 
IS,  can  in 
rd  on  the 

mt  of  this 

}nt  of  the 
(rated  into 
lent,  so  as 
ie  an  inde- 
contrary, 
clearly  re- 
ct  society, 
e  ever  was, 
lot  author- 
,s  upon  the 

what  con- 
aim  before 
lebts  is  not 
;r  annexa- 
Ithe  federal 
[ments,  the 

Texas  are 

lexas  to  the 

liability. 

|the  United 

jffect,  is  in 


Again,  I  will  have  recourse  to  the  language  of  the  United  States 
Secretary  of  the  Treasury,  adopted  by  the  President  himself,  as  the 
best  expression  of  the  proposition  which  the  United  States  agent  now 
thinks  himself  justified  in  protesting  against. 

"It  is  obvious,"  writes  Mr.  Corwin,  "from  the  most  careless  pe- 
rusal of  the  law,  that  Congress  considered  the  United  States  as  liable  to 
pay  all  that  portion  of  the  debt  of  Texas  for  the  redemption  of  which 
^duties  on  imports'  had  been  pledged  by  the  law  of  Texas." 

Upon  no  other  hypothesis  is  there  any  justifiable  motive  for  requir- 
ing releases  to  the  United  States  to  be  filed  for  such  claims  before 
Texas  should  receive  the  last  five  millions  of  the  stock  to  be  paid  her. 
In  other  words.  Congress  admitted  the  liability  of  the  general  govern- 
ment to  pay  all  that  portion  of  the  public  debt  of  Texas,  and  laid  its 
hands  upon  five  millions  of  the  stock  provided  for  as  a  security  that 
Texas  should  pay  that  portion  of  her  debt ;  or,  in  her  failure  to  do 
so,  the  five  millions  thus  withheld  should  be  a  fund  out  of  which  that 
class  of  the  creditors  of  both  Texas  and  the  United  States  should  be 
paid  in  whole  or  in  part,  as  the  relative  amount  of  such  debt  and  the 
fund  reserved  should  determine. 

The  history  of  the  debt  contracted  by  Texas  while  she  was  yet  an 
independent  power,  and  her  subsequent  incorporation  into  the  Union 
as  a  State  of  the  republic  of  the  United  States,  it  is  believed,  makes 
the  United  States  liable  for  this  portion  of  the  Texas  debt. 

The  laws  of  nations  which  govern  the  subject  are  well  understood, 
and  of  easy  application  to  the  present  question.  These  laws  all  pro- 
ceed upon  the  idea  that  the  moral  obligations  of  independent  States 
are  binding  when  once  they  attach  to  compacts  between  States  or  be- 
tween States  and  individuals,  and  that  they  never  cease  except  by  the 
voluntary  agreement  of  the  parties  interested,  or  by  their  fulfilment 
and  complete  discharge.  Hence,  where  an  independent  power  con- 
tracts obligations,  and  is  afterwards,  by  the  act  of  another  power  jointly 
with  herself,  incorporated  into  and  subjected  to  the  dominion  of  the 
latter,  whereby  the  national  responsibility  of  the  former  is  destroyed, 
and  the  means  of  fulfilling  her  obligations  transferred  to  the  latter, 
all  such  obligations,  to  the  extent  at  least  of  the  means  thus  trans- 
ferred, attach  with  all  their  force  to  the  nation  to  whom  such  means 
have  been  so  transferred. 

It  will  be  found  that  all  writers   on  public  law,  having  any 


ii 


422 


ADJUSTMENT  OF  CLAIMS   UNDER  THE 


1  il 


authority,  are  agreed  upon  this  point,  from  the  time  of  Grotius  to  the 
present.  Indeed,  the  proposition  thus  asserted  is  so  obviously  just, 
that  it  is  not  possible  for  a  nation  in  modern  times  to  controvert  it 
without  forfeiting  that  character  for  justice  and  probity  which,  hap- 
pily for  mankind,  has  become  indispensable  for  sovereign  States.  It 
was  this  view  of  the  subject  which  doubtless  dictated  that  provision 
of  the  law  which  I  am  now  considering. 

It  was  known  to  Congress  that  Texas  had  contracted  debts  to  a  large 
amount  to  individuals  while  she  was  an  independent  power.  It  was 
equally  well  known  that  revenue  arising  fror\  "duties  on  imports" 
was  amongst  all  nations  in  modern  times  one  resource,  if  not  the  prin- 
cipal one,  for  the  payment  of  the  debts  of  nations.  It  was  known 
also  by  the  framers  of  this  act  that  by  the  annexation  of  Texas  to  the 
United  States  the  power  to  levy  duties  on  imports  within  the  ports  or 
territories  of  Texas  was  taken  away  from  the  latter,  and  transferred 
to  the  United  States.  It  was,  therefore,  assumed  that  the  United 
States  should  pay,  if  Texas  did  not,  all  that  portion  of  the  debt  of 
Texas  for  which  duties  on  imports  had  been  pledged,  for  the  obvious 
reason  that  these  duties  thus  pledged  were  taken  from  Texas  and 
transferred  to  the  United  States,  and  to  that  extent  the  creditors  of 
Texas,  by  a  plain  principle  of  justice,  had  become  the  creditors  of  the 
United  States.  ^, 

But  this  clear  and  indisputable  obligation  of  the  United  States,  to 
discharge  a  liability  which  she  has  voluntarily  taken  upon  herself, 
has  not  only  been  thus  duly  acknowledged  by  the  Executive  of  the 
United  States/ but  on  three  diflferent  occasions — the  first  in  1847,  the 
two  others  in  1848 — the  United  States  Senate  Committee  of  Claims 
reported  in  favor  of  the  payment  by  the  United  States  of  this  debt, 
and  upon  the  express  ground  that  the  transfer  of  the  right  to  levy 
imports  which  Texas  had,  as  a  sovereign  republic,  at  the  time  of  her 
annexation  to  the  United  States,  and  which  antecedently  she  had  ap- 
propriated expressly  to  the  payment  of  this  debt,  bound  the  United 
States  to  do  one  of  two  things — either  to  pay  the  debt  or  surrender 
the  pledge ;  and  not  being  able  constitutionally  to  do  the  latter,  it 
follows,  as  a  matter  of  irresistible  consequence,  that  she  is  both 
morally  and  legally  bound  to  do  the  former.  And  since  this  commis- 
sion was  appointed  a  bill  has  been  actually  reported  by  the  Senate  for 
payment  of  such  creditors  of  Texas  as  are  comprehended  in  the  act  of 


M 


CONVENTION  WITH   GREAT  BRITAIN. 


423 


IS  to  the 
ly  just, 
rovert  it 
ch,  hap- 
ites.  It 
(rovision 

0  a  large 
It  was 
mports" 
the  prin- 
i  known 
as  to  the 
ports  or 
msferred 
5  United 
3  debt  of 
J  obvious 
jxas  and 
ditors  of 
)rs  of  the 

States,  to 
herself, 
ve  of  the 
1847,  the 
»f  Claims 
his  debt, 
t  to  levy 
ne  of  her 
had  ap- 
e  United 
mrrender 
latter,  it 
is  both 
I  commis- 
lenate  for 
;he  act  of 


Congress  of  September,  1850,  in  which  category  Mr.  Holford  holds  a 
prominent  place. 

Strange  to  say,  this  last  fact  has  been  made  use  of  on  this  occasion 
in  order  to  prove  that  this  commission  has  no  right  to  enter  upon  a 
consideration  of  the  case.  It  is  said,  that  because  Congress  has  taken 
up  the  subject,  this  commission  is  ousted  of  its  jurisdiction.  If  this 
were  to  be  held  sufficient,  however,  the  entire  jurisdiction  of  the  com- 
missioners might  have  been  ousted,  and  the  whole  object  of  the  con- 
vention frustrated,  by  each  government  taking  an  initiatory  step  with 
respect  to  each  important  claim  ♦.he  mere  introduction  by  one  section 
of  the  legislature  of  a  b'^  beii^^-  'usidered  tantamoi  .  ':,  '"*  jgainstthe 
claimants,  to  a  final  settlement  oi  their  claims. 

The  fifth  assertion,  which  is  the  last  in  the  protest  made  by  the 
learned  agent  against  the  commissioners  assuming  jurisdiction  over 
the  claim,  is  as  follows : 

*' Because  this  commission  has  nothing  to  do  with  any  law  or  act 
of  the  United  States  addressed  to  the  government  or  people  of 
Texas,  designed  or  tending  to  induce  that  State  to  perform  her  obli- 
gations entered  into  while  an  independent  republic ;  and  hence  to  take 
jurisdiction  of  this  claim  would  be  a  palpable  and  unwarrantable  vio- 
lation of  the  spirit  and  intention  of  the  convention,  to  which  the 
United  States  would  have  a  just  and  perfect  right  to  take  exception, 
as  much  so  as  if  this  commission  were  to  pass  laws  for  the  government 
of  the  United  States,  or  do  any  other  thing  wholly  without  the  bounds 
of  its  authority." 

I  suppose,  for  it  is  not  very  clearly  stated,  that  it  is  intended  to 
assert  that  the  commissioners  have  no  right  to  take  notice  of  or  draw 
any  inference  from  the  first  proviso  in  the  fifth  clause  of  the  first  sec- 
tion of  the  act  of  Congress  of  the  9th  of  September,  1850,  which  says 
that  no  more  than  five  millions  of  said  stock  shall  be  issued  to  Texas 
until  the  creditors  of  Texas,  having  a  pledge  on  the  duties  on  imports, 
shall  file  releases  against  the  United  States — which^  of  course,  they 
would  not  be  likely  to  do  until  they  had  been  paid  what  was  due  to 
them  by  some  one.  This  proviso  the  learned  agent  regards  as  merely 
an  inducement  addressed  by  Congress  to  the  government  of  Texas  to 
perform  her  obligations ;  but  I  have  yet  to  learn  that  the  refusal  of  a 
debtor  to  pay  what  he  owes  his  creditor,  until  that  creditor  shall  have 
discharged  all  the  debts  which  he  owes  to  other  people,  is  to  be  con- 


424 


ADJUSTMENT  OF  CLAIMS  UNDEB  THE 


1  I 


;i  ! 


sidered  simply  as  an  "  inducement"  to  the  creditor  to  do  his  duty.  I 
cannot  suppose  that  Congress  withheld  five  millions  on  such  pretext, 
because,  if  I  did,  I  must  necessarily  consider  that  Congress,  in  enact- 
ing that  proviso,  intended  to  act  dishonestly  ps  regards  Texas. 

Certainly  the  "inducement"  was  not  likely  to  have  this  effect ;  for 
it  is  not  probable  that  Texas,  on  the  assumption  that  she  needed  such 
inducement,  would  pay  twelve  millions  of  dollars,  (the  amount  of  her 
debts  for  which  her  imports  were  mortgaged,)  in  order  to  receive  five 
millions  from  the  United  States. 

It  is  clear  to  me,  however,  looking  merely  at  the  language  of  the 
proviso,  and  remembering  the  occasion  of  it,  that  Congress  designed 
to  save  the  United  States  harmless  from  ultimate  liability,  as  also  to 
protect  the  creditors  from  loss,  and  that  this  anxiety  sprang  from  a 
settled  conviction  that  the  United  States,  having  appropriated  the  se- 
curity of  the  creditors,  was  liable  to  them  in  respect  of  it ;  and  that, 
being  so  liable,  Congress  was  justified  in  providing  means  to  indemnify 
the  United  States  from  loss.  So  far,  then,  from  thinking  that  the 
commissioners  have  nothing  to  do  with  this  act,  I  consider  it.  is  incum- 
bent upon  us  to  consider  it  carefully.  To  my  mind,  it  furni  ;hes  au- 
thoritative evidence,  of  the  most  conclusive  description,  of  the  very 
proper  mode  in  which  the  Congress  of  the  United  States  have  consid- 
ered the  position  of  the  creditors  of  T  s,  not  only  with  respect  to 
the  specific  pledge  to  them  of  the  duties  on  imports,  but  also  of  their 
position  and  their  rights  as  against  the  United  States,  consequent  on 
and  subsequent  to  the  appropriation  of  those  duties  to  themselves  by 
the  United  States.  It  follows,  therefore,  in  my  judgment,  that  this 
fifth,  as  also  all  the  preceding  assertions  of  the  United  States  agent, 
ought  not  to  be  sustained,  and  that  this  commission  have  full  juris- 
diction over  the  claim. 

Looking  also  at  the  fact  that  the  moneys  advanced  by  Mr.  Holford 
for  the  purposes  mentioned  in  the  agreement  of  October  24,  1848, 
yteie  secured  by  the  terms  of  the  law  of  May  16,  1838,  by  a  pledge  of 
all  the  revenues  of  Texas ;  that  the  bonds  so  given,  as  a  further  security 
for  the  performance  by  Texas  of  that  agreement,  were  also  secured  by 
the  solemn  pledge  of  all  the  revenues  and  public  faith  of  Texas ;  that 
this  solemn  pledge  of  all  the  revenues  has  always  been  interpreted  to 
mean,  and  necessarily  does  include,  a  specific  pledge  of  the  revenues 
derivable  from  imports ;  that  this  branch  of  revenue  has  passed  into 


i 

duty.     I 
pretext, 
in  enact- 
,s. 

feet;  for 
ided  such 
int  of  her 
iceive  five 

ige  of  the 
designed 
as  also  to 
ig  from  a 
ted  the  se- 
and  that, 
indemnify 
;  that  the 
t  is  incum- 
rni  >hes  au- 
pf  the  very 
ive  consid- 
respect  to 
so  of  their 
sequent  on 
nselves  hy 
,  that  this 
ates  agent, 
full  juris- 


OONVBNTION  WITH  OBEAT  BBITAIN. 


425 


the  possession  of  the  United  States  la  consequence  of  the  admission  of 
Texas  into  the  Union,  and  is  still  in  law  and  equity  suhject  to  the 
obligation  antecedently  imposed  on  it,  notwithstanding  the  terms  of 
any  agreement  entered  into  by  Texas  with  the  United  States  with 
reference  to  the  debts  of  the  former,  I  have  no  hesitation  in  saying 
that  my  opinion  is  in  perfect  accordance  with  that  uniformly  expressed 
by  the  Executive  and  legislature  of  the  United  States,  to  the  effect 
that  the  United  States,  having  become  possessed  of  the  public  revenues 
of  Texas,  pledged  for  the  payment  of  the  debt  due  to  Mr.  Holford 
under  the  agreement  of  October  24,  1838,  and  secured  by  the  bonds  of 
July  1,  1849,  are  properly  responsible  for  the  discharge  of  those  obli- 
gations. 

In  conclusion,  I  must  say  that  this  claim  appears  to  me  entirely 
unanswered  and  unanswerable  ;  and  I  am,  therefore,  of  opinion  that 
the  United  States  government  is  responsible  for  the  payment  of  the 
bonds  of  Texas  now  held  by  the  executors  of  Mr.  Holford,  and  the 
arrears  of  interest  now  due  thereon. 


♦ 


Ir.  Holford 
24,  1848, 

a  pledge  of 

ler  security 
secured  by 
exas;  that 

;erpreted  to 
e  revenues 
lassed  into 


426 


ADJUSTMENT  OF  CLAIMS  UNDEB  THE 


\l 


n 


N  ' 


If 


Bates,  Umpire:  , . 

Held  that  cases  of  this  description  were  not  included  among  the  un- 
settled claims  that  had  received  the  cognizance  of  the  governments, 
or  were  designed  to  be  embraced  within  the  provisions  of  the  conven- 
tion, and  were,  therefore,  not  within  the  jurisdiction  of  the  commission. 


9 


X 


•tiir- 


CONVENTION   WITH  GREAT   BRITAIN. 


427 


tho  un- 
iments, 
Donven- 
aisBiou. 


SCHOONER  JOHN. 


In  a  treaty  of  peace,  where  it  waa  stipulated  that,  within  certain  limita,  peace  should  take 
ofTect  in  twelve  days,  and  in  others  at  diflferent  periods,  ranging  from  thirty  to  forty,  sixty, 
and  ninety  days,  held  that  such  an  agreement  waa  to  be  construed  as  an  acknowledgment  by 
the  parties  that,  with  due  diligence,  notice  might  be  given,  in  those  limits,  within  the  times 
named,  and  the  parties  bound  themselves  thereby  to  accept  such  term  as  constructive  notice 
of  such  peace. 

Where  it  was  provided  that  vessels  and  their  effects  taken  within  such  limits,  aflor  the 
time  stipulated  when  peace  should  exist,  "should  be  restored,"  held  it  was  no  excuse  if  such 
vessel  was  afterwatds  cast  away  and  lost,  and  therefore  could  not  be  returned  to  the  owners, 
but  that  compensation  must  be  made. 

The  party  in  such  case  must  Bo  held  as  a  wrong  doer  from  the  outset,  and  bound  to  make 
full  restitution. 


In  the  early  part  of  the  year  1815,  the  American  schooner  "John" 
sailed  from  the  port  of  Matanzas,  in  the  island  of  Cuha,  with  a  cargo 
of  molasses,  coffee,  &c.,  for  the  port  of  Portsmouth,  in  the  State  of 
New  Hampshire.  I'" 

On  the  5th  day  of  March,  in  the  same  year,  when  in  latitude  31°  40' 
north,  and  longitude  78°  10'  west  from  the  meridian  of  Greenwich, 
she  fell  in  with  the  British  ship-of-war  "Talhot,"  Lieutenant  Mau- 
desley,  acting  commander,  and  was  captured  and  taken  possessic^  of 
as  a  prize  of  war. 

She  was  then  put  in  charge  of  a  prize  master  and  crew  from  the 
"  Talbot,"  and  taken  in  tow  by  that  vessel  for  Jamaica.  On  the  11th 
of  March,  while  the  two  vessels  were  yet  in  company,  they  made  land, 
which  the  officers  commanding  erroneously  supposed  to  be  "Atwood's 
Key. ' '  On  the  12th,  they  made  what  they  supposed  to  be  the  ' '  French 
Keys,"  and  subsequently,  what  they  took  to  be  the  place  called  the 
"Hogsties,"  and  shaped  and  continued  their  course  as  if  these  suppo- 
sitions were  correct,  although  assured  of  their  mistake  by  Beck,  the 
deposed  master  of  the  "John." 


428 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


In  a  few  hours  the  schooner  was  ashore  at  a  place  called  *•' Point 
Mulas,"  in  the  island  of  Cuba,  and  the  "Talbot"  was  saved  from  the 
same  fate  only  by  hastily  putting  about,  and  standing  out  to  sea. 
The  next  day  the  crew  were  taken  from  the  wreck,  which  was  aban- 
doned, and  totally  lost. 

On  arriving  at  Jamaica,  the  master  and  crew  were  detained  as  pris- 
oners of  war.  On  the  29th  of  March,  news  of  the  ratification  of  the 
treaty  of  peace  having  been  received,  they  were  released.  Captain 
Beck,  the  master,  thereupon  addressed  a  letter  to  Lieutenant  Mau- 
desley,  demanding  his  papers,  and  was  by  that  officer  referred  to  the 
vice  admiralty  court  at  Kingston ;  but,  upon  application  there,  ho 
was  informed  that  neither  the  log-book  nor  the  papers  of  the  "John" 
had  boon  lodged  there.  Whereupon  he,  with  others  of  the  crew, 
made  protest,  at  Kingston,  upon  the  foregoing  state  of  facts. 

On  returning  to  the  United  States  a  more  specific  and  detailed  pro- 
test was  made,  and  subsequently  the  owners  of  the  schooner  com- 
menced a  suit  in  admiralty  against  Lieutenant^  Maudesley  for  the  value 
of  the  vessel  and  cargo,  which  was  finally  decided  against  them  by 
Sir  William  Scott,  on  December  18,  1818,  on  the  ground  that  the 
commander  of  a  vessel  of  war,  when  notice  has  not  reached  him  of 
the  conclusion  of  peace,  is  not  personally  liable  for  such  a  capture. 

The  owners  had  incurred  heavy  expenses  in  the  prosecution  of  this 
suit,  and,  owing  to  this  circumstance  and  various  adverse  events  per- 
sonal to  them,  delayed  for  many  years  making  application  to  the 
United  States  government,  as  they  should  originally  have  done.  Ap- 
plication was  at  length  made,  and  the  claim  was  earnestly  urged  on 
the  attention  of  the  British  government  by  Mr.  Lawrence,  while 
minister  at  London. 

It  is  as  yet  unsettled ;  and  is  now  presented  for  the  consideration 
and  final  action  of  this  commission. 


P- 


CONVENTION   WITH   GREAT   BRITAIN. 


429 


'•Point 
rora  the 
to  sea. 
,s  aban- 

as  pris- 
n  of  the 
Captain 
nt  Mau- 
(1  to  the 
here,  bo 
"John" 
lie  crew, 

tiled  pro- 
oer  com- 
the  value 
them  by 
that  the 
id  him  of 
pture. 
)n  of  this 
rents  per- 
)n  to  the 
ne.    Ap- 
urged  on 
ce,  while 

sideration 


Thomas,  agent  and  counsel  for  the  United  States,  ond  Clark,  irAY©<, 
and  Tuck,  cited  authorities  to  the  following  points  : 

A  treaty  of  peace  or  a  truce  binds  the  contracting  parties  from  the 
time  of  the  signature,  or  from  its  ratification,  where  a  ratification  is 
necessary.  Hostilities  are  to  cease  from  tliat  time,  or  at  the  expiration 
of  such  other  periods  as  may  bo  i)rovided  in  tl>e  treaty,  in  various 
districts  and  latitudes. — (1  Kent's  Com.,  159;  2  JVheaton,  291;  1 
WiUhnnn's  Institutea  of  Tnterutifional  Laiv,  158.) 

The  right  of  capture  depends  on  the  fact  of  war.  When  the  war 
ceases,  the  right  ceases.  ^ 

Ignorance  of  the  peace  can  confer  no  right  of  capture  in  time  of  peace. 
The  right,  being  wholly  dependent  on  the  fact  of  war,  is  necessarily 
independent  of  the  knowledge  of  the  captor. — (1  JV  'dman's  Insti- 
tutes, 150.) 

In  case  of  capture  when  peace  exists,  restitution  and  compensation 
is  to  be  made. — (Puffendorf,  lib.  8,  chap.  7,  sec.  9 ;  Grotius,  Uu.  3, 
chap.  21, sec.  5;  1  Hob.  Rep.,  181,  The  Mentor.) 

Kent  and  Wheaton  cite  Grotius  as  saying,  in  the  section  rr^^rrcd 
to,  that  "where  acts  of  hostility  are  committed  after  peace  is  uuk'o, 
but  not  notified,  the  contracting  parties  are  not  amenable  in  damage; 
but  it  is  the  duty  of  the  government  to  restore  what  has  been  captured 
but  not  destroyed."  It  will  be  found,  however,  on  referring  to  the 
section,  that  Grotius  states  merely  that  the  parties  "will  not  be  liable 
to  punishment,  but  must  make  good  the  damage;"  and  such  seems  to 
be  the  sound  authority  on  this  point. — (1  Wildman's  Institutes,  159 ; 
1  Kent's  Com.,  169;  2  Wheaton,  291 ;   Vattel,  lib.  3,  chaj).  16.) 

It  was  further  contended,  that  the  rule  as  laid  down  by  Chitty  was 
applicable  to  this  case,  that  "where  a  party,  by  hii  ovn  contract,  ab- 
solutely engages  to  do  an  act,  it  is  to  be  held  as  La  own  fault  and 
folly  that  he  did  not  expressly  provide  against  contingencies,  and 
exempt  himself  from  responsibility  in  certai.'i  events;"  and  that, 
"where  a  contract  is  general  and  abso'uto,  the  performance  is  not 
excused  by  an  inevitable  accident,  or  other  contingency,  although  not 
foreseen  by  or  within  the  control  .if  the  ^arty."— {Chitty  on  Contracts, 
p.  735.) 


430 


ADJUSTMENT  OF  CLAIMS  UNDER   THE 


i 


Hannen,  agent  and  counsel  for  Great  Britain,  cited  "TAe  John," 
2  Dodson,  336,  where,  in  this  case,  Sir  William  Scott  held,  that  in  a 
suit  hrought  against  the  captor  he  was  not  liable,  excei)t  on  notice ; 
and  intimates,  further,  his  opinion  that,  in  case  of  loss  of  the  vessel, 
the  government  would  not  be  liable. 

He  cited,  also,  to  the  same  point,  1  Kent's  Com. ,  159,  and  2  Wheaton, 
291 ;  and  Vattel,  lib.  3,  chap.  16. 


^ 


CONVENTION  WITH  GREAT  BRITAIN. 


431 


TJpHAM,  United  States  Commissioner : 

In  the  able  argument  addressed  to  us  by  her  Majesty's  counsel,  the 
British  agent,  some  stress  has  been  laid  on  the  decision  of  Sir  William 
Scott,  (2  Dodson,  336,)  on  a  suit  brought  against  the  commander  of 
the  Talbot  for  the  capture  of  the  John ;  and  that  authority  is  considered 
as  conclusive  of  this  claim. 

But,  in  that  case,  the  learned  judge  expressly  declined  determining 
whether  or  not  the  claimant  had  a  remedy  elsewhere ;  he  only  decided, 
for  reasons  which  he  gives  at  length,  that  the  captor  should  be  person- 
ally exonerated. 

In  determining  this  question,  he  says:  "I  certainly  go  no  further 
than  the  expressions  used  by  me  warrant,  that  this  individual  captor 
is  not  liable  to  this  individual  sufferer." 

"  That  does  not  exclude  a  liability  elsewhere,  if  it  exists.  "Whether 
there  be  such  a  liability  in  the  government  is  a  question  I  am  not 
called  upon  to  examine ;  I  have  neither  the  proper  parties  nor  the 
evidence  before  me.  It  is  sufficient  to  observe,  upon  that  matter,  that 
there  may  be  such  a  liability ;  there  doubtless  would  be,  if  the  gov- 
ernment had  not  made  due  diligence  in  advertising  the  cessation  of 
hostilities,  in  the  quarters  and  at  the  periods  stipulated,  if  that  were 
practicable." 

''Where  property,  captured  after  peace  has  taken  effect,  is  lost  by 
mere  chance,  without  any  fault  on  the  part  of  the  captor,  whether  an 
obligation  is  incurred  to  restore  in  value  what  has  been  taken  away  by 
mere  misfortune,  the  terms  of  the  contract  have  not  specifically  pro- 
vided for  ;  and  just  principle  seems  to  point  another  way;  that,  how- 
ever, is  not  the  question  before  me  for  my  decision." — (Schooner  John, 
Beck,  master,  2  Dodson,  p.  336.) 

This  case  conflicts  with  the  opinion  of  the  same  learned  judge  in 
the  Mentor,  1  Robinson,  p.  183.  He  there  says,  "that  the  seizure  of  a 
vessel  is  a  belligerent  right  which  is  not  exercisable  in  time  of  peace. 
When  there  is  peace,  a  seizure,  jure  belli,  is  a  wrongful  act,  and  the 
injured  party  is  entitled  to  restitution  and  compensation. ' '  He  further 
says,  "it  is  not  so  clear  that  the  captor  is  liable  to  costs  and  damages, 
where  peace  has  not  been  notified.  The  better  opinion  seems  to  be, 
that  the  captor  is  liable  to  costs  and  damages,  and  entitled  to  indem- 


-* 


432 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


nification  from  his  g-^vernment,  whose  duty  it  was  to  have  given 
notice." 

Both  these  cases  sustain  this  point,  that,  when  there  is  a  want  of 
due  diligence,  in  advertising  the  cessation  of  hostilities,  the  injured 
party  is  clearly  entitled  to  indemnification ;  and  Vattel  says,  also, 
"that  those  who  shall,  through  their  own  fault,  remain  ignorant  of 
the  publication  of  the  truce,  would  be  hound  to  repair  any  damage  they 
may  have  caused  contrary  to  its  tenor." — (Vattel,  hoolc  3,  ch.  16.) 

There  seems  to  be  no  doubt  that  the  principle,  thus  laid  down,  is 
correct.  But  what  constitutes  due  diligence,  under  such  circumstances, 
is  a  question  at  times  of  difiicult  .determination.  It  is,  therefore,  ex- 
ceedingly desirable  that  it  should  be  settled  by  the  parties  in  advance. 
Vattel  says,  in  the  same  section,  "in  order  as  far  as  possible  to  avoid 
any  difficulty,"  on  this  point,  "it  is  usual  with  sovereigns,  in  their 
truces,  as  well  as  treaties  of  peace,  to  assign  different  periods  for  the 
cessation  of  hostilities  according  to  the  situation  and  distance  of 
places." 

The  question  then  arises,  whether  this  assignment  of  different 
periods  for  the  cessation  of  hostilities,  according  to  the  situation  and 
distance  of  places,  was  not  designed  by  the  parties  to  establish  the  time 
to  be  holden  as  reasonable  notice  loithin  such  limits.  Such  clearly  is  the 
ground  assigned  by  Vattel  for  such  provisions  in  treaties.  What 
would  be  reasonable,  can  be  determined  just  as  well  before  the  treaty 
as  after,  and  the  whole  tenor  of  the  treaty,  in  this  case,  goes  to  show 
that  the  contracting  parties  had  this  question  in  view,  in  establishing 
the  various  periods  within  which  peace  should  take  place  in  different 
localities. 

The  treaty  provides  that,  "immediately  after  the  ratification,  orders 
shall  be  sent  to  the  armies,  squadrons,  officers,  subjects,  and  citizens 
of  the  two  powers,  to  cease  from  all  hostilities ;  and,  to  prevent  all 
causes  of  complaint  whinh  may  arise  on  account  of  prizes,  which  may 
be  taken  at  sea  after  said  ratification,  it  is  reciprocally  agreed,  that  all 
vessels  and  effects,  which  may  be  taken  after  the  space  of  twelve  days 
from  the  said  ratification,  upon  all  parts  of  the  coast  of  north  America, 
from  the  latitude  of  23°  north,  to  the  latitude  of  50°  north,  and  as 
far  eastward  in  the  Atlantic  ocean  as  the  36°  of  west  longitude  from 
the  meridian  of  Greenwich,  shall  be  restored  on  each  side;  that  the 
time  shall  be  thirty  days  in  all  other  partfl  of  the  Atlantic  ocean, 


CONVENTION  WITH  GREAT  BRITAIN. 


433 


given 

want  of 
injured 
's,  also, 
orant  of 
ige  they 
.6.) 

lown,  is 
[Stances, 
fore,  ex- 
idvance. 
to  avoid 
,  in  their 
Is  for  the 
jtance  of 

different 
a,tion  and 
k  the  time 
rly  is  the 
What 
he  treaty 
s  to  show 
jablishing 
different 

)n,  orders 
citizens 
revent  all 
|hich  may 
I,  that  all 
[elve  days 
JAmerica, 
I,  and  as 
tude  from 
that  the 
Lie  ocean, 


north  of  the  equator,  and  the  same  time  for  the  British  and  Irish 
channels,  for  the  Gulf  of  Mexico,  and  all  parts  of  the  West  Indies ; 
forty  days  for  the  North  Seas,  for  the  Baltic,  and  for  all  parts  of  the 
Mediterranean ;  sixty  days  for  the  Atlantic  ocean,  south  of  the  equa- 
tor, as  far  as  the  latitude  of  the  Cape  of  Good  Hope ;  ninety  days  for 
every  part  of  the  world  south  of  the  equator,  and  one  hundred  and 
twenty  days  for  all  the  other  parts  of  the  world  without  exception." — 
{United  States  Statutes  at  Large,  vol.  S,p.  219.) 

These  several  periods  were  undoubtedly  agreed  upon  as  equivalent 
to  notice  that  peace  existed  within  the  prescribed  limits.  It  cannot 
be  supposed  that  the  contending  parties  designed  to  append  to  these 
periods  a  further  indefinite,  uncertain  time,  as  to  what  should  consti- 
tute due  diligence  in  giving  notice,  or  to  restrain  or  limit  the  fact  in 
its  consequences,  that  peace  should  exist  at  the  times  named. 

After  the  periods  thus  agreed  upon,  the  obligation  to  cease  from 
hostilities  was  imperative. 

Such  being  the  case,  we  have  the  true  starting-point  from  which  to 
consider  the  question  of  the  respective  rights  of  the  parties.  It  is 
manifest  that  collisions  might  then  occur  without  the  imputation  of 
any  wilful  wrong  in  the  violation  of  the  compact  entered  into.  The 
injury  would,  however,  exist,  and  the  actual  loss  sustained  should,  on 
every  principle  of  equity  and  justice,  as  well  as  of  compact,  be  fully 
met. 

The  stipulation  was,  therefore,  entered  into  by  the  parties,  that 
''  all  vessels  and  effects  "  that  should  be  taken  after  the  several  times 
specified  "  should  be  restored."  The  question  then  arises,  what  in- 
terpretation we  shall  place  on  tliis  provision  ?  Does  it  mean  that  ves- 
sels and  effects  captured  shall  be  returned  in  specie,  or  that  the  identi- 
cal property  merely,  shall  be  returned,  and  where  this  has  become 
impracticable  that  no  restitution  or  satisfaction  shall  be  had?  I 
cannot  believe  that  such  was  the  intent  of  the  parties. 

They  acknowledge  tliemselves  bound  by  a  constructive  notice  of  the 
peace,  and  it  was  their  own  fault  that  they  did  not  take  time  enough, 
or  did  not  use  diligence  enough  to  give  actual  notice  of  the  peace  ' '  to 
their  armies,  squadrons,  officers,  subjects,  and  citizens,"  as  was 
specially  provided  should  be  done  by  the  treaty. 

Under  such  circumstances,  the  doctrine  of  Vattel,  adopted  by  Sir 

28  -  ' 


I 


>  ) 


434 


ADJUSTMENT   OP   CLAIMS  UNDER   THE 


William  Scott,  applies,  "that  those  who  through  their  own  fault 
remain  ignorant  of  the  publication  of  the  truce  are  bound  to  repair 
any  damage  they  may  have  caused  contrary  to  its  tenor." 

The  party  injured  is  in  the  same  situation  as  a  neutral  whose  vessel 
has  been  seized  and  destroyed  as  the  property  of  a  hostile  power, 
where  it  is  holden  the  neutral  can  only  be  justified  by  a  full  restitu- 
tion in  value. — (1  Wildman,  vol.  2.  p.  175.) 

There  is  no  other  measure  of  damage  that  justly  meets  the  require- 
ments of  the  case.  The  treaty  provides  not  only  that  "  all  vessels/ ' 
but  also  "  their  effects,"  which  may  be  taken,  after  a  certain  specified 
number  of  days,  within  certain  described  limits,  shall  be  restored  on 
either  side.  But  if  the  effects  of  a  vessel,  consisting  of  provisions  or 
other  articles,  are  taken  and  consumed,  or  are  otherwise  disposed  of, 
so  they  cannot  be  restored  specifically,  it  will  hardly  be  contended 
that  no  remuneration  is  to  be  made. 

If  this  be  so,  the  rule  would  equally  follow  in  relation  to  the  ves- 
sel. Restoration  and  restitution  are  synonymous.  One  meaning  of 
the  word  "  restore^"  as  laid  down  by  Webster  is,  "to  make  restitution 
or  satisfaction  for  a  thing  taken,  by  returnint;;  something  else,  or 
something  of  different  value,"  and  this  is  the  meaning  which  should 
be  rightfulty  attached  to  the  word  in  the  treaty. 

I  do  not  understand  that  this  is,  in  reality,  denied;  but  the  position 
is  taken  by  Great  Britain  in  this  case,  that  she  is  relieved  from  restor- 
ing the  vessel,  for  the  reason  that  it  was  subsequently  cast  away  and 
lost  by  the  act  of  God,  and  no  one  is  accountable. 

If  the  case  can  be  brought  within  this  principle  the  excuse  might 
avail,  but  there  are  circumstances  connected  with  it  that  preclude  such 
defence.  No  one  can  plead  the  destruction  of  property  as  the  act  of 
God,  who  is  wrongfully  in  the  use  and  control  of  such  property.  He 
is  a  wrong  doer  from  the  outset ;  he  has  converted  the  property  from 
the  instant  of  possession,  and  the  subsequent  calamity  which  may 
happen,  however  inevitable  it  may  be,  is  no  excuse  for  its  loss. 

The  John  was  in  the  rightful  pursuit  of  a  lawful  voyage,  at  a  time 
and  place  when  peace  existed  by  tlie  express  stipulations  of  the  par- 
ties, after  taking  such  period  for  notice  as  they  held  that  the  case 
required. 

She  had  pursued  her  course  northwardly  some  four  or  five  hundred 
miles  out  from  harbor,  on  her  way  to  her  destined  port.     She  was 


CONVENTION  WITH  GREAT  BRITAIN. 


436 


m  fault 

0  repair 

se  vessel 
5  power, 

1  restitu- 

rcquire- 
vessels/' 

specified 
'.stored  on, 
visions  or 
3pos6d  of, 
jontended 

)  the  ves- 
leaning  of 
restitution 
V  else,  or 
ich  should 

le  position 

om  restor- 

away  and 

use  might 
elude  such 

the  act  of 
)erty.  He 
perty  from 

tiich  may 

OSS. 

at  a  time 
f  the  par- 
the  case 


there  seized,  placed  under  the  charge  of  new  men,  and  her  course  was 
directly  reversed,  until  she  was  taken  hack  to  the  West  Indies,  and 
through  mismanagement,  or  misadventure,  was  run  on  shore  and 
lost. 

It  may  have  heen  the  ordinary  accident  of  the  seas,  or  may  not ; 
but,  in  any  event,  she  was  taken  there  without  right,  and  subjected 
to  risks  to  which  she  was  not  legally  and  justly  liable.  The  plea  that 
she  was  lost  by  the  act  of  God  is  not,  under  such  circumstances,  ad- 
missible. The  vessel  itself  cannot  be  restored,  but  such  compensation 
and' restitution  should  be  made  as  the  nature  of  the  case  admits  of. 

In  the  argument,  considerable  stress  has  been  laid  on  a  quotation 
in  Kent  and  Wheaton,  said  to  be  founded  on  Grotius,  that  where  col- 
lisions arise,  after  peace  exists,  the  governments  *'are  not  amenable 
in  damages,  but  it  is  their  duty  to  restore  vhat  has  been  captured, 
hut  not  destroyed."  The  citation  irom  Grotius  is,  however,  erroneous. 
He  merely  says,  in  the  section  referred  to,  that  if  any  acts  be  done, 
in  violation  of  the  truce,  before  notice  can  be  given,  "the  government 
will  not  be  liable  to  punishment,  but  the  contracting  parties  will  be 
bound  to  make  good  the  damage." — (Wheicell's  Grotius,  liber  3,  cJiap, 
21,  sec.  5.) 

What  shall  be  the  precise  effect,  as  a  matter  of  notice,  where  differ- 
ent periods  of  time  are  stipulated  in  which  peace  shall  take  place, 
does  not  seem  to  have  been  fully  considered  and  settled.  If  it  shall 
be  held  as  an  acknowledgment  of  notice,  then  every  subsequent  act  of 
violation  of  it  is  the  act  of  a  wrong-doer,  and  full  compensation  fol- 
lows of  necessity. 

I  can  see  no  possible  mode  of  avoiding  tlie  justness  or  soundness  of 
the  construction  at  which  we  have  arrived,  but  think  it  should  pre- 
v«'l  on  every  ground  of  public  policy  and  right  interpretation  of 
international  compacts  of  this  character.  • 

I  am  happy  to  say  that  my  colleague,  though  he  hesitates  some- 
what as  to  the  views  presented,  waives  his  objection  to  the  allowance 
of  the  claim,  except  on  the  score  of  interest,  and  this  question  is  to  be 
submitted  to  the  umpire. 

Interest  was  allowed. 


fQ  hundred 
She  was 


436 


ADJUSTMENT  OF  CLAIMS  UNDEB  TSB 


CHARLES  UHDE  AND  COMPANY. 


British  merchants  who  continued  residents  in  Mexico,  engaged  in  trade,  after  war  had 
broken  out  between  that  country  and  the  United  States,  hold  as  alien  enemies,  and  not 
entitled  to  recovery  under  this  convention,  as  already  holden  in  Laurents'  case. 

Where,  after  the  capture  of  a  Mexican  port,  it  was  opened  to  trade  of  residents  and  others, 
subject  to  the  payment  of  certain  duties,  held,  under  such  license,  the  character  of  alien 
enemies  ceased,  and  v/here  the  United  States  had  taken  cognizance  of  the  claims  of  such 
residents,  as  of  British  subjects,  prior  to  the  convention,  these  claims  might  be  rightfully  em- 
braced within  it. 

License  to  a  vessel  to  enter  and  discharge  a  cargo  does  not  free  her  from  the  claim  of  pay- 
ment of  duties. 

Where  order  was  issued  for  payment  of  duties  as  a  discharge  from  seizure,  but,  through 
misfortune  or  misunderstanding,  was  not  carried  into  effect,  held  that  compensation  be  made. 


i:  ■( 


I 


Charles  Uhde  &  Co.  were  British  subjects  who  had  been  resident 
merchants  in  Matamoras,  in  Mexico,  since  the  year  1842,  and  con- 
tinued to  reside  there  after  the  commencement  of  the  war  between 
that  government  and  the  United  States,  in  1846.  In  June  of  that 
year,  Matamoras  was  captured  by  the  United  States  troops,  and  a  cir- 
cular was  issued,  opening  the  port  to  American  vessels  free  of  duty, 
or  other  vessels  freighted  with  American  goods  or  produce,  or  with 
foreign  goods  that  had  paid  an  import  duty  in  the  United  States. 

The  Messrs.  Uhde  chartered  the  American  schooner  Star,  at  New 
Orleans,  for  a  voyage  to  Havana,  designing  to  import  from  there  a 
a  cargo  of  merchandise  for  Matamoras.  The  Star  arrived,  on  the  6th 
of  November,  at  Brazos,  at  the  mouth  of  the  Kio  Grande ;  and  the 
master  of  the  vessel  went  on  shore,  and  inquired  of  a  Mr.  Cook,  who 
claimed  to  be  a  deputy  collector,  if  his  vessel  might  enter.  He  gave 
him  a  permit  to  enter,  as  follows : 


GOlCrBNTION  WITH   QBBAT  BRITAIN. 


437 


ter  war  had 
lies,  and  not 

s  and  others, 
cter  of  alien 
aims  of  such 
ightfully  em- 

ilaim  of  pay- 
but,  through 
ion  be  made. 


Brazos  St.  Iaqo,  November,  1846. 
The  master  of  the  schooner  Star  is  authorized  to  discharge  her 
cargo  at  Barita  or  Matamoras. 

G.  S.  COOK,  Deputy  Collector. 
Charles  Uhde  &  Co. 

Cook  charged  $7  50  for  his  fees. 

The  vessel  passed  up  the  river  and  landed  her  goods  at  Matamoras, 
and  the  claimants  placed  them  in  their  own  storehouses.  Two  days 
afterwards  the  goods  were  seized  by  Colonel  Clark,  the  commanding 
military  officer  of  the  station.  Appeal  was  made  to  Washington,  and 
a  full  hearing  had,  on  the  examination  of  the  parties,  before  Mr. 
Walker,  the  Secretary  of  the  Treasury,  who  decided  that  the  seizure 
was  lawful,  but  issued  an  order  that  the  goods  might  be  returned  by 
paying  the  duty  according  to  the  tariff  of  1842,  with  charges  for  ware- 
house rent  and  interest  from  the  time  of  the  seizure. 

These  terms  were  not  complied  with,  and  the  goods  were  taken  to 
Galveston,  in  Texas,  and  condemned  and  sold,  in  a  damaged  state,  at 
much  loss. 

The  claimants  say  that  no  person  came  to  Matamoras  to  carry  that 
order  into  effect.  The  officers  of  the  government  were  there,  however, 
claiming  control  of  the  property,  and  there  is  no  evidence  showing 
any  tender  of  payment,  or  offer  of  compliance  with  the  order. 


1  resident 
and  con- 
between 
ne  of  that 
and  a  cir- 
e  of  duty, 
e,  or  with 
tates. 
r,  at  New 
m  there  a 
an  the  6th 

and  the 
Oook,  who 

He  gave 


i^ 


si 


438 


ADJUSTMENT  OF  CLAIMS  UNDER*  THE 


Mr.  Hannen,  agent  and  counsel  for  Great  Britain,  contended  that 
after  the  capture  of  Matamoras,  and  the  opening  of  the  port,  the  ex- 
ception taken  to  the  jurisdiction  would  not  hold  good  as  to  commerce 
subsequently  allowed. 

It  had  been  expressly  waived  also  by  the  United  States  government 
prior  to  the  convention,  and  could  not  now  be  urged. 

He  contended  that,  under  the  license  of  entry,  no  duties  should 
have  been  demanded,  and  that  after  the  claim  of  duties  was  insisted 
on,  sale  was  made  without  fault  of  the  claimant,  and  compensation 
should  be  allowed. 


CONVENTION   WITH   GREAT  BRITAIN. 


439 


ded  that 
,  the  ex- 
ommerce 

rcrnment 

!S  should 
)  insisted 
pensation 


Thomas,  Agent  for  the  United  States. 

It  appears  from  the  papers  in  this  case  that  the  claimant  was,  in  the 
month  of  November,  1846,  a  resident  merchant  of  Matamoras,  Mexico. 
War  existed  between  the  United  States  and  that  country  at  the  time 
the  transaction  took  place  of  which  the  complaint  is  made,  and  the 
United  States  army  was  in  possession  of  Matamoras. 

The  American  schooner  "  Star,"  Captain  Merrill,  master,  arrived  at 
the  mouth  of  the  Rio  Grande  November  6,  1846.  On  his  arrival 
there,  it  is  alleged  that  the  captain  made  application  to  G.  S.  Cook, 
the  deputy  collector  at  Brazos  Santiago,  for  a  permit  to  discharge 
the  cargo  of  his  vessel  at  Burita  or  Matamoras.  Both  these  places 
were  without  the  revenue  district  of  Mr.  Cook,  and  his  permit, 
even  if  honestly  obtained,  could  give  no  right  to  land  the  goods  at 
either  Burita  or  Matamoras,  because  he  had  no  authority  in  either 
place.  Besides,  both  were  under  military  government,  and  an  officer 
of  the  army  at  each  place  was  acting  as  collector  of  the  port. 

Under  the  authority  of  this  permit,  it  is  stated  that  the  cargo 
of  the  "Star  "  was  transferred  to  a  steamboat  and  landed  at  Mata- 
moras, and  the  goods  placed  in  the  warehouse  of  the  claimant.  A  few 
days  thereafter  they  were  seized,  on  the  ground  that  they  had  been 
introduced  by  a  fraudulent  evasion  of  the  custom-house  regulations  of 
the  place. 

It  is  not  pretended  that  any  duty  had  been  paid  on  these  goods,  and 
the  right  to  sell  them  without  such  payment  was  asserted  by  the 
claimant,  because  the  civil  authority  of  the  United  States  had  not  yet 
been  extended  over  that  possession.  The  commanding  officer  refused 
to  allow  him  this  privilege,  and  he  now  claims,  in  consequence  of  the 
proceedings  of  the  military  commander,  twelve  thousand  pounds  ster- 
ling damages,  from  the  government  of  the  United  States. 

In  the  first  place,  I  must  object  to  the  jurisdiction  of  the  commis- 
sion in  this  case.  The  convention  under  which  it  is  organized  gives 
jurisdiction  of  the  claims  of  "  British  subjects"  upon  the  government 
of  the  United  States.  The  claimant  was  domiciled  in  the  enemy's 
country  when  the  transaction  took  place  of  which  he  complains,  and 
by  a  well  settled  principle  of  international  law,  he  is  to  be  regarded 
as  a  Mexican,  and  not  a  British  subject ;  and  whatever  claim  he  may 
have  had  against  the  United  States  was  disposed  of  by  the  treaty  of 


440 


ADJUSTMENT  OF   CLAIMS  UNDER  THE 


peace.  This  is  not  the  tribunal  before  which  to  make  his  complaint^ 
as  I  have  fully  shown  in  the  argument  I  had  the  honor  to  submit  to 
the  commissioners,  in  the  case  of  the  Messrs.  Laurent,  and  to  which 
I  would  now  beg  to  refer  them. 

Upon  the  simple  statement  of  this  case,  it  seems  to  me  the  commis- 
sioners must  reject  the  claim  entirely.  A  merchant,  living  in  the 
enemy's  country,  ventures  to  sliip  goods  to  a  military  port,  re  3ntly 
fallen  into  the  hands  of  u  victorious  army,  and  ho  rinds  that  the  rev- 
enue laws  of  the  conqueror's  country  have  not  yet  been  proclaimed 
there  by  the  Executive,  and  he  hence  claims  the  right  to  disregard  the 
regulations  which  the  military  commandant  has  established,  and  to 
say  that  because  the  revenue  laws  liave  not  been  extended  over  this 
place  by  the  civil  autliority,  that  he  will  exercise  the  right  to  sell  his 
goods  in  that  market  without  the  payment  of  duties.  I  can  see 
nothing  in  this  pretension  likely  to  deserve  the  attention  of  the  com- 
missioner, unless  it  be  its  effrontery. 

The  civil  authority  at  Matamoras  was  merged  in  the  military. 
The  commander  of  the  place  was  supreme.  He  dictated  all  the  laws 
for  its  government,  and  it  cannot  be  disputed  that  he  had,  by  the 
laws  of  war,  the  right  to  impose  any  law  or  regulation  which  he 
deemed  proper  for  the  landing  of  goods,  or  to  prescribe  the  conditions 
on  which  they  might  be  sold  within  his  command.  It  is  not  unusual 
for  the  conqueror  to  regard  the  laws  found  existing  as  in  force  till  it 
may  become  expedient  to  change  them.  There  was,  previous  to 
the  taking  of  the  place  by  the  anuy,  a  law  of  Mexico  requiring  the 
payment  of  duties,  and  the  claimant  should  have  expected  to  become 
subject  to  this  law,  if  no  other  had  been  established.  The  commander, 
however,  chose  not  to  enforce  this  law,  but  to  adopt  that  which  was 
prescribed  for  the  admission  and  sale  of  the  same  kind  of  goods  in  the 
United  States,  which  he  had  clearly  a  right  to  do.  It  is,  however, 
impossible,  in  any  view  of  the  case,  that  this  cargo  could  be  rightfully 
entered  and  sold  in  that  port  without  the  payment  of  duty.  When 
Matamoras  was  taken  by  the  array,  there  was  no  cessation  of  law 
or  government.  When  the  authority  of  Mexico  terminated,  that  of 
the  United  States  commenced  ;  and  there  was  consequently  no  inter- 
regnum during  which  the  claimant  could  come  in  unaflFected  by  law. 

It  is  alleged,  however,  that  the  claimant  had  a  permit  to  land  the 
goods.     In  my  statement  of  the  case,  I  have  already  shown  that  the  per- 


CONVENTION   WITH  GREAT  BRITAIN. 


441 


mplaint, 
lubmit  to 
to  which 

commis- 
ig  in  the 

re  3ntly 
b  the  rev- 
roclaimed 
egarcl  the 
f(l,  ami  to 

over  this 
to  sell  his 
[  can  see 

the  com- 

military. 
1  the  laws 
d,  by  the 
which  he 
conditions 
)t  unusual 
jrce  till  it 
revious  to 
liring  the 
to  become 
mmander, 
which  was 
)ods  in  the 
however, 
■ightfuUy 
.     When 
on  of  law 
ed,  that  of 
r  no  inter- 
1  by  law. 
0  land  the 
lat  the  per- 


mit was  wholly  illegal  and  gave  no  protection  or  authority  whatever. 
Besides,  there  is  much  reason  to  believe  that,  valueless  as  it  was,  from 
being  granted  by  a  custom-house  officer  possessing  no  jurisdiction  over 
the  district  of  Matamoras,  there  was  fraud  in  procuring  it.  The 
deputy  collector  made  ^  written  statement,  it  is  said,  that  the  captain 
of  the  scliooner  "  Star  "  made  oath  before  him  that  the  duties  had  been 
paid,  and  the  said  deputy  collector  exhibited  what  purported  to  bo  a 
copy  of  this  oath,  subscribed  by  the  captain  of  the  Star,  to  Lieutenant 
Chase,  quartermaster  of  the  army  and  collector  of  the  port.  These 
circumstances  go  to  show  that  the  permit,  so  much  relied  upon,  was 
fraudulently  obtained. 

This  case  was  fully  and  carefully  investigated  by  the  Secretary  of 
the  Treasury,  and  Uhde,  the  claimant,  was  heard  before  him  by  coun- 
sel, and  the  result  was  that  the  Secretary  decided  the  duties  must  be 
paid,  and  in  case  that  was  not  done,  the  goods  should  be  sold  at  auc- 
tion, and  the  duties  and  expenses  being  deducted  the  balance  should 
be  turned  over  to  the  claimant.  This  order  was  carried  into  effect  in 
a  manner  the  least  exceptionable  to  the  claimant.  The  goods  were 
transported  to  Galveston  and  there  sold  under  a  decree  of  the  district 
court,  and  the  sum  of  $8,715  36  was  left  at  the  disposal  of  the  claimant. 

It  appears,  therefore,  that  he  had  a  hearing  before  the  Secretary  of 
the  Treasury,  and  the  further  privilege  of  a  trial  by  the  district  court, 
which  in  the  United  States  is  the  court  of  admiralty  jurisdiction,  and 
the  proper  tribunal  to  determine  a  question  of  this  kind ;  and  that 
court  ordered  the  goods  to  be  sold  and  the  duty  and  expenses  paid. 
The  trial  took  place  at  Galveston,  in  Texas,  the  nearest  place  that 
could  have  been  selected  and  the  most  convenient  to  the  claimant.  It 
is  difficult  to  conceive  how  the  United  States  could  have  acted  with 
greater  fairness  or  with  more  regard  for  his  just  rights.  The  com- 
missioners ought  to  give  due  consideration  to  the  fact  that  this  case 
has  been  decided  by  the  proper  executive  officer  charged  with  the  ad- 
ministration of  this  particular  branch  of  the  government,  and  that 
the  decision  has  been  confirmed  by  the  judgment  of  a  competent 
court.  Universal  law  and  international  comity  demand  that  these 
proceedings  should  be  everywhere  respected,  and,  most  of  all,  by  a 
joint  commission,  sitting  under  the  authority  of  England  and  the 
United  States. 


I 


442 


ADJUSTMENT   OF  CLAIMS  UNDER  TBE 


a 


Dr.  PiKLLiMORG,  for  t)io  chiiuiunts : 

It  cannot  bo  disputed  tlmt  prima  facie  Mr.  Uhde  is  ontitlci;  ..ii^er 
the  terniH  of  the  convention — namely,  "suhjocts  of  her  Britannic 
Majesty" — to  have  his  claim  entertained  by  the  commissioners. 

I  agree,  however,  that  a  treaty  or  convention  is  to  bo  construed, 
and  particular  expressions  in  it  interpreted,  agreeably  to  the  rules  of 
international  law. 

I  do  not  know  upon  what  principle  of  law,  or  what  authority  among 
jurists,  a  restrictive  interpretaiimi  could  be  affixed  upon  these  words 
of  the  convention,  unless,  indeed,  (as  I  understand  the  American 
counsel  to  argue,)  they  happened  to  have  received  such  restrictive  in- 
terpretation from  a  uniform  current  of  decisions  of  acknowledged  in- 
ternational authority. 

I  do  not  see  that  the  authority  of  any  jurist  is  referred  to  by  Mr. 
Thomas,  and  the  cases  v;hich  he  cites*  are  far  from  satisfying  me  that 
the  commissioners  could  legally  adopt  any  such  exceptional  construc- 
tion of  the  terms  as  is  contended  for.  They  are  taken  from  the  prize 
courts,  from  the  privy  council,  from  the  common  law,  and  from  the 
equity  courts. 

A  misunderstanding  of  the  cases  in  the  prize  courts  appears  to  me 
to  be  at  the  root  of  Mr.  Thomas's  argument. 

It  is  quite  true  iVoX  flagrante  hello  merchants  residing  in  the  enemy's 
country  are  considered,  with  reference  to  the  belligerent  right  of 
maritime  prize,  as  subjects  of  that  country^  without  reference  to  the 
country  of  their  origin  or  allegiance,  and  without  much  reference  to 
the  length  of  their  residence. 

Their  domicil,  for  this  particular  purpose,  is  said  to  be  sufficient  to 
found  the  right  of  the  maritime  captor;  but  it  would  be  stretching  the 
principle  of  those  decisions  to  an  extent  which  was  never  intended 
to  say  that  they  were  not  British  subjects  in  the  sense  of  this  conven- 
tion ;  for  instance,  and  the  example  alone  is  sufficient  to  answer  the 
whole  question,  is  there  any  jurist  who  would  say  that  an  injury 
offered  to  a  British  merchant  residing  at  Mexico  would  not,  all  other 
means  of  redress  being  exhausted,  justify  the  issue  of  reprisals  on  the 
part  of  Great  Britain  ? 


*This  is  designed  as  an  answer  to  Mr.  Thomas's  argument  in  Laurents'  case,  page  136. 


CONVENTION    WITH   GREAT    BRITAIN. 


448 


l;  alitor 
ritannic 

8. 

nstrued, 
rules  of 

y  among 
ie  words 
imerican 
ctivo  in- 
dgod  in- 

)  by  Mr. 
[  me  that 
Bonstruc- 
khe  prize 
from  the 

rs  to  me 

enemy's 
right  of 
ce  to  the 
erence  to 


The  case  of  McConnell  vs.  Hector,  decided  in  1802,  (3  Boh.  aud 
Puller,  p.  314,)  that  perHons  who  had  incorporatod  thoniselvos  with 
the  commerce  of  the  enemy,  Jlagrantc  hello,  may  not  sue  in  this  country. 

The  case  of  Albretch  vh.  Susman  (2d  Vesey  and  Ik^ames,  p.  32fi) 
decided  that  the  quasi  diplomalic  character  of  consuls  made  no  differ- 
ence as  to  the  law  on  this  point. 

The  Countess  of  Conway's  case,  (2d  Knapp's  Privy  Council  Reports, 
p.  367,)  when  examined,  appears  to  be  adverse  to  Mr.  Thomas's  argu- 
ment, for  Mr.  IJaron  Parke  decided,  in  that  case,  that  the  party  must 
show  "  that  siie  was  a  British  subject  in  some  sense,"  and  that  "  one 
of  these  two  things  must  be  shown,  either  that  the  countess  was  a 
natural-born  British  subject,  or  that  having  been  born  abroad  she  was 
domiciled  in  England,  and  in  that  character  entitled  to  the  protection 
of  a  British  subject  at  the  time  of  the  confiscation."  Now,  Mr.  Uhde 
is  a  natural-born  subject  of  Great  Britain,  and  his  native  character, 
by  a  particular  regulation  of  the  Mexican  State,  is  most  carefully 
preserved. 

I  am  of  opinion  that  the  principles  of  international  law  do  not  war- 
rant the  restrictive  interpretation  sought  to  be  put  upon  the  plain 
words  of  the  convention,  and  that  Mr.  Uhde  is  not  disentitled  to  have 
his  claim  entertained  by  the  commissioners. 

ROBERT  PHILLIMORE. 

Doctors'  Commons,  October  14,  1854. 


ficient  to 
ling  the 
ntended 
conven- 
swer  the 
n  injury 
,11  other 
8  on  the 


>age  136. 


444 


ADJUSTMENT  OF  CLAIMS  UNDER  THE 


II 


REPLY  OP  MR.  THOMAS,  AGENT  OP  THE  UNITED  STATES,  TO  THE 
ARGUMENT  OF  DR.  PHILLIMORE,  M.  P.,  ADVOCATE  TO  HER  MAJESTY 
IN  HER  OFFICE  OF  ADMIRALTY,  &c. 

The  learned  advocate,  Dr.  Phillim  >re,  has,  in  his  opinion,  reviewed 
and  attempted  to  answer  my  argtment  in  the  case  of  the  Messrs. 
Laurent.  He  admits  that  "a  treaty  or  convention  is  to  be  construed, 
and  particular  expressions  in  it  interpreted,  agreeably  to  the  rules  of 
international  law  ;  "  but  he  says  that  I  do  not  cite  any  jurist  in  sup- 
port of  the  meaning  I  give  to  the  term  "  British  subjects,"  as  this  is 
used  in  the  convention. 

It  is  important,  in  the  outset,  to  observe  that  the  learned  advocate 
has  admitte''  that  we  are  no^  to  look  into  the  British  statutes  for  the 
meaning  of  the  term  "  Briti  h  subject,"  but  that  we  are  to  seek  for 
its  interpretation  in  the  law  of  nations.  The  jurists  and  writers  on 
intemationol  law  to  whom  he  refers  do  not  make  the  law ;  they  collect 
the  decisions  of  the  courts  that  determine  what  the  law  is,  and  it  must 
be  quite  as  authoritative  to  quote  from  the  decisions  as  to  cite  the 
jurist  who  has  merelv  collated  and  made  comments  upon  them. 
However,  it  will  not  be  difficult  to  cite  both  the  jurists  and  the  courts 
in  support  of  the  construction  for  which  I  contend. 

Chancellor  Kent  is  a  jurist  of  acknowledged  authority  everywhere, 
in  England  and  America,  and  he  says  ''  the  position  is  a  clear  one, 
that  if  a  perpon  goes  into  a  foreign  country  and  engages  in  trade 
there,  he  is,  by  the  law  of  nations,  to  be  considered  a  merchant  of 
that  country,  and  a  subject  for  all  civil  purposes,  whether  the  country 
be  hostile  or  neutral." 

The  claimants  were  engaged  in  trade  in  Mexico,  while  that  country 
was  at  war  with  the  United  States,  and  hence  Chancellor  Kent's 
doctrine  applies  in  the  strongest  manner.  They  are  to  be  considered 
subjects  of  that  country  and,  of  course,  enemies  of  the  United  States. 
If  they  were  subjects  of  that  country,  they  could  not  be  at  the  same 
time  British  subjects,  in  the  sense  of  the  treaty,  because  Dr.  Phillimore 
admits  that  its  words  are  to  be  interpreted  by  international  law,  and 
that  law  looks  only  to  see  who  are  rendering  practical  allegiance,  who 
are  absolutely  under  the  control  and  government  of  a  country,  in  order 
to  determine  who  are  its  subjects. — (One  allegiance  ;  see  Phillimore, 
Int.  Law,  p.  347.) 


CONVENTION   WITH   GREAT   BRITAIN. 


445 


TO   THE 
MAJESTY 

reviewed 
s  Messrs. 
Dnstrued, 
e  rules  of 
st  in  sup- 
as  this  is 

advocate 
;es  for  the 
D  seek  for 
\rriters  on 
ley  collect 
id  it  must 
0  cite  the 
)on  them, 
the  courts 

erywhere, 
clear  one, 
I  in  trade 
srchant  of 
le  country 

at  country 
or  Kent's 
considered 

;ed  States. 

« 

t  the  same 
'hillimore 

law,  and 
ance,  who 

, in  order 
hillimore, 


In  support  of  my  view  of  the  law  on  this  point,  I  would  cite  Dr. 
Phillimore's  own  work  on  Domicil,  page  133,  where  he  quotes  entire, 
and  with  approbation,  the  case  of  the  ship  Ann.  This  vessel  was 
seized  in  the  river  Thames  in  1812.  The  master  was  a  British-born 
subject,  and  his  family  still  resided  in  Scotland,  but  he  was  residing 
in  America;  an  order  in  council  decreed  that  all  vessels  under  the  flag 
of  the  United  States,  bona  jide  the  property  of  his  Majesty's  subjects, 
purchased  before  the  war,  should  be  restored,  and  the  question  was, 
whether  the  master  of  the  Ann  was  a  British  subject  ?  Sir  William 
Scott,  whose  decision  Dr.  Phillimore  approves,  said  "  he  cannot  take 
advantage  of  both  characters  at  the  same  time.  He  has  been  sailing 
out  of  American  ports.  It  is  quite  impossible  he  can  be  protected 
under  the  order  in  council,  which  applies  only  to  those  who  are  clearly 
and  habitually  British  subjects,  having  no  intermixture  of  foreign 
commercial  character."  Here  is,  from  Dr.  Phillimore  himself,  the 
exact  interpretation  of  the  words  "  British  subject,"  for  which  I  am 
contending.  But  he  says  again,  at  page  146  of  the  same  work  : 
''Every  man  is  vieived  by  the  laio  of  nations  as  a  member  of  the  society 
in  which  he  is  found. "  ' '  Residence  is  prima  facie  evidence  of  national 
character,  susceptible,  however,  at  all  times,  of  explanation.  If  it  be 
for  a  special  purpose,  and  transient  in  its  nature,  it  shall  not  destroy 
the  original  or  prior  national  character  '  but  if  it  be  taken  up  animo 
manendi,  (with  the  intention  of  remaining,)  then  it  becomes  a  domicil, 
superadding  to  the  original  or  prior  character  the  rights  and  privi- 
leges, as  well  as  the  disabilities  and  penalties  of  a  citizen,  a  subject  of 
the  country  in  tvhich  the  residence  is  established. 

According  to  this  rule  of  Dr.  Phillimore,  the  claimants  being  found 
in  Mexico  were,  by  the  law  of  nations,  members  of  that  society  and 
subjects  of  that  country  ;  they  are  not,  therefore,  included  within  the 
provisions  of  a  treaty  to  settle  claims  of  "British  subjects"  upon  the 
government  of  the  United  States. 

Dr.  Phillimore  admits  that  persons  residing  in  the  enemy's  country 
are  considered  as  subjects  of  that  country,  in  reference  to  their  property 
on  the  high  seas.  If  this  is  true  of  their  property  on  the  ocean,  why 
is  it  not  equally  so  of  this  same  property  when  it  is  located  in  the 
country  itself.  It  is  then  much  more  hostile,  and  clothes  the  owner 
who  is  wii  h  it  more  especially  with  the  enemy  character.  Suppose 
an  American  citizen  should  now  be  residing  in  Sebastopol,  his  pro- 


446 


ADJUSTMENT   OF  CLAIMS   UNDER   THE 


l»! 


perty  on  the  ocean  would  be  liable  to  seizure  and  confiscation,  for  his 
domicil  being  there,  he  would  be  invested  with  the  national  character 
of  a  Eussian  subject,  and  what  he  might  have  within  that  fortress 
would,  ii  possible,  render  his  Kussian  character  even  more  complete. 
Will  it  be  contended  that,  if  his  property  there  should  be  injured  or 
destroyed,  the  British  government  must  settle  with  him  upon  a 
different  principle  from  that  of  the  native-born  Kussian  found  in  Se- 
bastopol  ?  According  to  Dr.  Phillimore's  argument  in  favor  of 
British-born  subjects  domiciled  in  Mexico  during  the  war,  he  is  en- 
titled to  be  considered  as  a  neutral,  and,  if  hereafter  there  should  be  a 
convention  to  settle  the  claims  of  American  citizens  upon  Great 
Britain,  he  may  claim  compensation  for  injury  done  to  him  or  his 
property  in  Sebastopol.  I  apprehend  the  British  government  will 
never- adopt  any  such  rule.  . 

Dr.  Phillimore,  to  show  that  I  have  stretched  the  principle  of  the 
admiralty  decisions  too  far,  supposes  an  injury  offered  to  a  British 
mercha.it  residing  in  Mexico,  and  all  other  means  of  redress  being  ex- 
hausted, asks  "  would  not  any  jurist  say  the  English  government 
would  be  justified  in  making  reprisals?"  I  will  answer  this  by  ask- 
ing whether  the  United  States  would  be  justified  in  making  reprisals 
for  an  injury  that  may  be  done  to  one  of  her  citizens  that  may  be 
found  in  Sebastopol?  Every  man  found  there  (by  the  law  of  nations) 
is  an  enemy  of  Great  Britain,  and  will  be  treated  as  a  subject  of  the 
Emperor  of  Russia.  When  peace  is  made,  the  American  citizen  so 
situated  will  not  be  permitted  to  say  that  he  is  not  bound  by  it,  but 
that  England  has  yet  to  make  a  separate  settlement  of  his  claims  for 
property  seized  or  destroyed.  A  treaty  of  peace  binds  every  person 
in  the  countiy  and  settles  all  their  claims ;  and  upon  this  principle 
the  treaty  of  peace  between  the  United  States  and  Mexico  disposed  of 
the  claim  of  every  man  in  that  country  upon  the  United  States. 

It  is  not  true,  then,  to  say  that  the  English  government  would  be 
justified  by  the  law  of  nations  in  making  reprisals  for  an  injury  done 
to  a  British-born  subject  residing  in  Mexico  during  the  war  between 
the  United  States  and  that  country.  She  could  no  more  interpose,  as 
a  matter  of  right,  in  behalf  of  a  British-born  than  she  could  in  favor 
of  a  Mexican-born  subject,  if  they  were  both  there  engaged  in  business. 

What  Dr.  Phillimore  says  of  the  case  of  McConnell  vs.  Hector  (3d 
Bosanquet  and  Puller,  p.  114)  is  true,  but  he  makes  no  reference  to 


CONVENTION  WITH   GREAT  BRITAIN. 


447 


)rhi8 
racier 
rtress 
iplete. 
red  or 
pon  a 
inSe- 
,vor  of 

is  en- 
Id  be  a 

Great 

or  his 
nt  will 

)  of  the 
British 

eing  ex- 

ernment 

1  by  ask- 

reprisals 
may  be 
nations) 
b  of  the 
tizen  so 
y  it,  but 
aims  for 
y  person 
principle 
sposed  of 

es. 
kvould  be 
ury  done 

between 
irpose,  as 
[  in  favor 
business. 

ector  (3d 
I'erence  to 


the  essential  point  in  that  case  on  which  I  relied.  He  says  :  *'This 
case  decided  that  persons  who  had  incorporated  themselves  with  the 
commerce  of  the  enemy  during  war  cannot  sue  in  this  country."  Yet 
if  he  stops  there,  the  impression  is  left  that  this  is  all  that  was  de- 
clared to  be  law  by  that  case.  Lord  Alvanley  did  not  arrive  at  that 
»  inclusion  without  having  first  laid  down  the  doctrine  that  "while 
an  Englishman  resides  in  the  hostile  country  he  is  a  subject  of  tha^. 
country. "  It  is  clear,  on  this  authority  alone,  that  the  claimants  can- 
not be  regarded  as  British  subjects  in  their  Mexican  transactions.  He 
says  the  case  of  Albrecht  vs.  Susman  (2  Vesey  and  Beames  Rep.,  p. 
323)  decided  that  the  quasi  diplomatic  character  of  consuls  made  no 
difference  as  to  the  law  on  this  point.  It  also  decided,  however,  that 
the  consul  was  a  subject  of  the  enemy's  country  if  he  continued  to  re- 
side there  during  war,  and  for  a  still  stronger  reason  must  the  sub- 
ject, holding  no  official  position,  and  remaining  in  the  enemy's  country, 
be  so  regarded.    ;  v..    =^M^i,  < ,  ■  ,-^-  r  *,<  .     -     '    '  ';•      •■■■ 

Conway's  case  (in  2d  Knapp's  Privy  Council  Reports)  fully  sus- 
tains the  doctrine  that  a  foreigner  domiciled  in  a  country  is  considered 
by  the  law  of  nations  a  subject  of  that  country. 

Dr.  Phillimore's  opinion,  that  the  term  "British  subjects,"  used 
in  the  convention,  embraces  British-born  subjects  domiciled  in  Mexico, 
or  engaged  there  in  trade,  and  hence  parties  to  the  war  between  the 
United  States  and  that  country,  is  not  therefore  sustained  by  any  of 
the  cases  he  has  cited,  nor  by  his  own  authority. 

JNO.  A.  THOMAS. 

London,  October  26,  1864. 


448 


ADJUSTMENT   OF   CLAIMS   UNDER  THE 


Upham,  Commissioner  of  the  United  States :  -.,    , 

In  tiiis  case  the  Messrs.  Uhde  &  Company  had  been  for  many  y^afs 
resident  merchants  in  Matamoras,  in  Mexico.  They  remained  there 
during  the  Mexican  war  and  subsequent  to  its  capture.  The  port  was 
then  opened  for  the  introduction  of  merchandise,  under  regulations 
similar  to  those  imposed  on  merchandise  imported  into  the  United 
States.  The  Star,  belonging  to  the  claimants,  had  been  previously 
chartered  at  New  Orleans  for  the  Havana,  and,  from  there,  was  to 
take  a  cargo  of  merchandise  to  Matamoras.  On  arrival,  application 
was  made  to  know  if  the  vessel  might  enter  the  port,  and  she  received 
a  permit  from  G.  S.  Cook,  at  the  mouth  of  the  Rio  Grande,  that  the 
vessel  might  enter  to  discharge  her  cargo  at  Barita  or  Matamoras. 

The  vessel  proceeded  to  Matamoras,  landed  her  cargo  without  fur- 
ther license,  or  rendering  any  account  for  duties,  and  they  were  seized 
by  the  commandant  of  the  station.  Application  was  made  at  Wash- 
ington, and,  on  a  full  hearing  there  had  of  the  claimants,  the  seizure 
was  sustained  by  Secretary  Walker  as  legal,  and  the  goods  were  or- 
dered to  be  discharged  on  the  payment  of  duties  according  to  the 
tariff  of  1842,  and  charges  and  expenses  of  warehouse  rent,  and  in- 
terest on  the  duties  from  the  time  of  seizure  until  the  payment  was 
made. 

This  decision  was  communicated  to  the  parties.  Subsequent  to  this 
period,  there  is  no  evidence  showing  any  offer  of  payment  of  these 
duties,  or  any  attempt  to  comply  with  the  order  of  the  Secretary  of  the 
Treasury  ;  and  the  goods  were  ultimately  proceeded  against  in  the 
United  States  disL'ict  of  Galveston,  and  the  goods  were  sold. 

The  case  has  been  argued  mainly  on  the  point,  whether  cognizance 
could  be  taken  of  the  Messrs.  Uhdes'  claim  before  this  commission  ; 
they  having  been  resident  merchants  at  Matamoras,  during  the  war 
between  Great  Britain  and  the  United  States.  That  point  has  been 
already  fully  considered  and  settled  in  the  case  of  the  Messrs.  Laurent, 
and  if  it  came  within  the  principles  of  that  decision,  we  should  have 
no  hesitation  in  its  re-affirmance.  But  the  proceedings  here  all  arise 
after  Matamoras  had  been  captured,  and  it  had  become  an  American 
possession,  with  its  ports  opened  to  commerce,  both  to  resident  citizens 
and  subjects  of  all  other  nations.  The  Messrs.  Uhdes  then,  wore  not 
to  be  regarded  as  alien  enemies,  and  might  perhaps  rightfully  be  con- 


CONVENTION   WITH   GREAT   BRITAIN. 


449 


ay  years 
3d  there 
port  was 
julations 
}  United 
reviously 
B,  was  to 
)plication 
5  received 
,  that  the 
noras. 
thout  fur- 
ere  seized 
at  Wash- 
he  seizure 
Is  were  or- 
ng  to  the 
it,  and  in- 
ment  was 

Lent  to  this 

it  of  these 

ftary  of  the 

iinst  in  the 


cognizance 
Immission  ; 
jor  the  war 
It  has  been 
3.  Laurent, 
lould  have 
h-e  all  arise 
Anierican 
ent  citizens 
li,  wore  not 
Illy  he  con- 


sidered as  coming  within  their  original  character  as  British  subjects. 
The  Secretary  of  the  Treasury,  in  considering  their  case,  too)'  no 
exceptions  on  this  ground,  and  it  is  a  case  which,  under  these  circum- 
stances, may  well  be  holden  as  within  the  jurisdiction  of  this  com- 
mission. 

The  claim  for  damages  has  been  placed  on  two  grounds:  1.  It  has 
been  contended  that  the  permission  to  enter  the  river  for  a  discharge 
of  goods  at  Barita,  or  Matamoras,  was  an  allowance  to  enter  free  of 
duty.  It  seems  to  me,  that  this  is  a  wholly  groundless  pretence.  The 
purport  of  the  permit  indicates  nothing  to  this  effect  on  its  face,  and, 
moreover,  it  is  in  every  respect  manifestly  an  unjust  evasion  of  the 
whole  spirit  and  tenor  of  the  orders,  the  design  of  which  was  to  place 
imports  on  the  same  basis  as  those  into  the  United  States. 

It  was  argued  that  an  offer  of  payment  of  duties  was  made  to  the 
commandant  before  application  was  forwarded  to  Washington  for  re- 
lief. I  am  not  satisfied  from  the  testimony  before  us,  that  any  such 
offer  was  made.  A  full  and  elaborate  hearing  was,  at  the  time,  had 
before  the  Secretary  of  the  Treasury,  and  the  witnesses  of  the  claimants 
were  examined  under  interrogatories  in  writing.  I  have  seen  no  rea- 
son to  doubt  the  justness  of  his  award,  and  if  it  be  just,  it  shows  a 
wrongful  attempt  at  evasion  of  duty  in  a  clear  case,  and  renders  it 
incumbent  on  him,  after  such  judgment,  to  show  a  tender  of  readiness 
and  willingness  on  his  part  to  comply  with  the  decision  made. 

The  claimants  have  offered  no  evidence  of  any  measures  having  been 
taken  by  thoni  to  meet  such  decision,  by  demand  of  the  goods  from 
the  commandant  of  the  place,  and  a  tender  of  the  duties  and  expenses 
required,  or  of  nny  other  effort  on  their  part  to  reclaim  their  property, 
subject  to  the  nen  of  tlie  government. 

This  was  clearly  imperative  on  them.  There  seems  to  have  been 
no  design  to  comply  with  the  order  of  the  government,  and  we  can 
account  for  it  only  from  carelessness  or  inability,  or  indisposition  to 
conform  to  it.  They  should,  at  least,  exonerate  themselves  from  any 
such  charge.  Tlicy  have  not  done  this,  or  attempted  to  do  it.  The 
goods  remained  for  a  long  time  undisposed  of,  and  were  finally  libelled 
and  sold.  This  result  was  inevitable,  unless  prevented  by  the  action 
of  the  claimants,  and  I  can  see  no  just  ground  in  such  case  for  the 
allowance  of  any  remuneration  on  account  of  the  sale. 

m 


II I 


.1 


-^.r  T- 


450 


ADJUSTMENT  OP  CLAIMS   UNDER   THE 


Hornby,  Commissioner  of  Great  Britain : 

Held  to  the  views  entertained  by  him  in  the  Laurent  case,  that  the 
Messrs.  Uhde  &  Company  were  British  subjects,  within  the  meaning 
and  intent  of  the  present  convention,  and  that  the  case  was  fully 
within  the  jurisdiction  of  the  commissioners. 

He  also  was  further  of  opinion,  that  subsequent  to  the  capture  of 
Matamoras,  and  the  opening  of  the  trade  of  that  port  to  residents  and 
other  persons,  any  objection  arising  from  the  position  of  the  claimants 
as  alien  enemies  was  done  away^  and  that  from  that  time  they  were  to 
be  regarded  as  clearly  entitled  to  the  protection  of  British  subjects. 
They  had  been  so  treated  by  the  United  States,  prior  to  this  conven- 
tion, and  the  position  then  taken  could  not  now  be  changed. 

He  viewed  the  right  of  entry  given  to  the  vessel  i»s  sustaining  the 
claim,  and  that  the  government  could  not  go  behind  it,  and  the  seizure 
sbould  have  been  holden  illegal;  also,  that  the  claimants  did  ail  that 
was  incumbent  upon  them,  after  the  decision  of  the  Secretary  of  the 
Treudury,  for  the  reclaiming  their  property. 


■if>Bf 


CONVENTION  WITH  GREAT  BRITAIN. 


451 


.IV 


that  the 
meaning 
vas  fully 

3apture  of 
dents  and 
claimants 
ey  were  to 
I  subjects, 
is  conven- 


aining 


the 


the  seizure 
[lid  ail  that 
itary  of  the 


Bates,  Umpire: 

Messrs.  Uhde  and  Company  were  merchants  of  Matamoras,  where 
they  had  resided  from  the  year  1842,  carrying  on  trade  there,  having  a 
house  of  business  and.a  home  in  that  city.  They  continued  to  reside 
there  after  the  declaration  of  war  by  the  United  States  against  Mexico 
in  1846,  and  until  1851.  According  to  the  interpretation  of  the  law 
of  nations,  by  the  highest  courts  in  Great  Britain,  it  is  a  point  settled, 
"  beyond  controversy,  that  where  a  neutral,  after  the  commencement 
of  hostilities,  continues  to  reside  in  the  enemy's  country  for  the  pur- 
poses of  trade  he  is  considered  as  adhering  to  the  enemy,  and  as 
disqualified  from  claiming  as  a  neutral  altogether." — (See  Doctor 
Lushington's  judgment  in  the  case  of  the  "  Aina,"  reported  in  the 
Jurist  of  July,  1855.)  However  good  the  claim  of  Messrs.  Uhde  and 
Company,  as  conquered  Mexicans,  against  the  United  States,  by  the 
interpretation  of  the  law  of  nations  as  given  by  the  decisions  of  the 
courts  of  Great  Britain  may  be,  the  claim  ought  to  be  excluded  from 
this  commission.  The  government  of  the  United  States  have,  however, 
entertained  the  claim  in  the  correspondence  between  the  diplomatic 
agents  of  the  two  countries,  and  for  this  reason  we  hold  it  should  be 
considered  aud  settled  without  further  delay. 

I  shall  proceed,  therefore,  to  examine  and  decide  the  case  on  its 
merits.  The  case  is  as  follows :  On  war  being  declared  by  the  United 
States  against  Mexico  in  1846,  the  ports  of  Mexico  were  declared  in  a 
state  of  blockade  ;  but  several  ports  (amongst  them  the  port  of  Mata- 
moras, on  the  Rio  Grar.de,)  having  fallen  into  the  possession  of  the 
United  States  forces,  the  government,  on  the  30th  of  June  of  that 
year,  issued  a  circular,  addressed  to  the  collectors  and  other  officers  of 
the  customs  in  the  United  States  in  regard  to  Matamoras,  to  the  fol- 
lowing effect,  viz : 

'^In  case  of  application  of  vessels  for  clearances  for  the  port  of 
Matamoras,  you  will  issue  them  under  the  following  circumstances: 

"  Ist.  To  American  vessels  only. 

"2d.  To  such  vessels  carrying  only  articles  of  the  growth,  produce, 
or  manufacture  of  the  United  States,  or  of  imports  from  foreign  countries 
to  our  own,  upon  lohich  duties  have  been  fully  paid.  Upon  all  such 
goods,  whether  of  our  own  or  of  foreign  countries,  no  duties  will  be 
chargeable  at  Matamoras,  so  long  as  it  is  in  the  possession  of  the 


■TTSE^f. 


462 


ADJUSTMENT   OF  CLAIMS   UNDER  THE 


United  States  forces.  Foreign  imports,  which  may  be  re-exported  in 
our  vessels  to  Matamoras,  will  not  be  entitled  to  any  drawback  of  duty ; 
for  if  this  were  permitted,  they  would  be  carried  from  that  port  to  the 
United  States,  and  thus  avoid  payment  of  all  duties." 

Of  this  circular,  which  was  published  in  the  newspapers  at  the 
time,  Messrs.  Uhde  &  Co.  must  have  been  aware.  They,  however, 
sent  to  New  Orleans  and  chartered  the  American  schooner  "Star," 
for  a  voyage  to  Havana,  to  load  a  cargo  of  merchandise  for  Matamoras, 
if  open,  and  if  not  open,  she  was  to  proceed  to  New  Orleans  to 
discharge.  The  circular  indicates  that  no  foreign  goods  could  be 
shipped  from  the  United  States  to  that  port  until  the  duties  had  been 
fully  paid.  Messrs.  Uhde  &  Co.  could  not,  therefore,  when  chartering 
the  "Star,"  have  supposed  that  a  cargo  of  foreign  goods,  from  a 
foreign  port,  could  enter  without  paying  duty,  when  foreign  goods 
from  the  United  States  were  chargeable  with  full  duty  in  the  United 
States  in  order  to  their  admission  free  at  Matamoras. 

It  is  stated  that  it  was  known  at  Havana,  when  the  "  Star  "  sailed, 
that  the  port  of  Matamoras  was  blockaded  ;  but  it  is  very  extraordinary 
that  a  vessel  should  proceed  to  a  port  known  to  be  blockaded  to  inquire 
whether  it  is  so  or  not.  The  "  Star"  arrived  at  Brazos  the  6th  No- 
vember, 1846,  which  is  on  the  Texan  bank  of  the  Kio  Grande.  The 
captain  went  on  shore  to  inquire  if  he  might  enter  his  vessel,  and  Mr. 
Or.  S.  Cook,  who  was  or  assumed  to  be  deputy  collector,  informed  him 
that  he  might,  and  charged  him  $7  50  for  fees.  Captain  Merrill,  of 
the  *'Star,"  exhibited  his  manifest,  &c.,  and  received  a  permit  to 
discharge  his  cargo  in  the  following  words  : 

"The  master  of  the  schooner  'Star,'  from  Havana,  is  authorized 
to  discharge  her  cargo  at  Barita  or  at  Matamoras. 

G.  S.  COOK, 
Deputy  Collector.  Brazos  St.  Jago,  November  7,  1846." 


clr 
the 


The  schooner  was  then  brought  into  the  river^  and  the  goods  were 
landed  in  open  day  by  Messrs.  Uhde  ».V  Co.,  and  placed  in  their  own 
warehouses,  and  were,  two  days  afterwards,  seized  by  the  military 
commander  of  the  place  on  the  charge  of  being  fraudulently  introduced. 

The  whole  defence  of  Messrs.  Uhde  for  their  landing  the  goods 
rests  on  the  value  and  force  they  attach  to  the  permit  given  to  Captain 
Merrell  to  discharge  his  cargo.     It  is  very  well  known  to  every  one 


■"■(•V 

>. 


CONVENTION   WITH  GREAT  BRITAIN. 


453 


»rted  in 
.fduty, 
t  to  the 

J  at  the 
lowever, 
"Star," 
tamoras, 
rleans  to 
could  be 
had  been 
hartering 
,s,  from  a 
ign  goods 
he  United 

,r"  sailed, 
raordinary 
L  to  inquire 
he  6th  No- 
mde.     The 
el,  and  Mr. 
■ormed  him 
Merrill,  of 
permit  to 

authorized 

)0K, 

|Y,  1846." 

goods  were 
In  their  own 
Ithe  military 

■introduced. 
(g  the  goods 
In  to  Captain 

to  every  one 


conversant  with  foreign  trade,  that  it  is  the  duty  of  every  shipmaster, 
on  arrival  at  a  foreign  port,  to  proceed  to  the  custom-house,  enter  his 
vessel,  and  pay  light  and  port  dues ;  until  he  has  done  so,  he  is  not 
allowed  to  commence  discharging  his  cargo.  But  this  is  very  different 
from  a  consignee's  permit  to  land  the  goods  which  are  entered  and 
bonded,  or  the  duties  paid  by  the  consignees  when  a  permit  is  granted 
to  land  the  same.  The  seizure  was,  therefore,  justifiable,  as  no  inquiry 
was  made  by  Messrs.  Uhde  &  Co.  if  any  duties  were  payable. 

After  the  seizure,  it  is  stated  that  the  claimants  offered  to  pay  the 
duties  of  the  American  tariff  tohicJi  was  to  go  into  operation  on  the  1st 
Deceniber  next.  This  was  refused  by  Colonel  Clark,  the  commanding 
military  officer,  who  seemed  determined  to  wait  orders  from  a  higher 
quarter. 

The  claimants  then  made  application  to  the  British  minister  at 
Washington,  who  applied  to  the  then  Secretary  of  State,  the  Hon, 
James  Buchanan,  the  case  was  referred  to  the  Secretary  of  the  Treas- 
ury, the  Hon.  K.  J.  Walker,  who  examined  the  master  of  the  Star, 
brought  to  Washington  by  the  claimants,  and  other  evidence,  and  a 
final  decision  was  come  to  that  the  seizure  was  sustained  ;  but  an 
order  was  made,  directed  to  the  collector  of  the  customs  at  Galveston, 
that  the  claimants  might  have  their  goods  on  payment  of  duty  accord- 
ing to  the  tariff  of  1842,  and  charges  and  expense  of  warehouse  rent, 
and  interest  on  the  duties  from  the  date  of  the  seizure  until  paid. 

From  some  cause  the  settlement  was  never  carried  into  effect.  The 
claimants  allege  that  no  person  ever  came  to  Matamoras  as  directed  by 
the  Secretary  of  the  Treasury,  and  that  the  goods  were  taken  to  Gal- 
veston, condemned,  and  sold  in  a  damaged  state  for  about  $8,800. 

My  belief  is  that,  had  the  arrangement  made  by  the  Secretary  of 
the  United  States  Treasury  been  carried  into  effect,  the  result  would 
liave  been  that  the  claimants  would  have  realized  near  the  cost  value 
of  their  goods.  I  therefore  award  to  Messrs.  Charles  Uhde  &  Co.,  or 
their  legal  representatives,  in  full  of  said  claim,  the  sum  of  twenty- 
five  thousand  dollars,  this  15th  January,  1855. 


APPENDIX. 


Letter  from  the  Commissioners  to  Mr,  Van  Biircn,  communicating  his 

appointment  as  Umpire. 

LoNi    N,  October  13,  1853. 

Sir  :  Enclosed  you  will  find  a  copy  of  tho  ntiou  foi  the  adjust- 

ment of  certain  claims  between  Great  Britain  the  United  States. 

Tiio  imdersigned  have  been  appointed  comii  loncrs  on  the  part  of 
the  two  governments  to  carry  the  provisions  ot  the  convention  into 
effect^  and  the  first  meeting  was  liolden  by  them  on  the  fifteenth  of 
September  ultimo.  Since  that  time  they  have  been  occupied  in  various 
conferences  in  reference  to  the  appointment  of  an  umpire,  required 
to  be  made  by  the  terms  of  the  convention,  to  act  in  case  of  any  dis- 
agreement between  the  commissioners.  In  endeavoring,  however,  to 
fix  upon  an  individual  who  should  unite  in  himself  the  requisites  of 
high  character,  exalted  position,  and  strict  impartiality,  they  have 
experienced  the  greatest  difficulty ;  nevertheless,  they  are  happy  to 
say  they  have  been  able  to  unite  cordially  in  agreeing  upon  yourself, 
and  believe  your  appointment  will  be  highly  acceptable  to  their 
respective  peoples  and  governments. 

The  object  of  this  letter  is  to  apprise  you  of  this  selection,  and  to 
express  the  hope  of  the  undersigned  that  your  acceptance  of  the  post 
may  be  consistent  with  your  engagements. 

You  will  perceive  that  an  umpire  will  bo  called  upon  to  act  only  in 
cases  of  disagreement  between  the  commissioners,  which,  it  is  to  be 
hoped,  may  not  arise,  but  which,  at  the  same  time,  is  not  wholly  un- 
likely to  be  the  case. 

By  the  provisions  of  the  convention,  it  is  possible  that  claims  may 
not  be  presented  until  within  three  months  of  the  period  limited  for 
its  termination,  after  which  time  hearing  may  be  had  before  the  com- 
missioners, and  in  case  of  disagreement  as  to  such  claims,  they  could 
not  be  submitted  to  the  umpire  until  near  the  close  of  the  commission. 
It  will  be  desirable,  therefore,  for  the  umpire  to  be  in  a  situation  to 
act  as  such,  should  he  be  called  upon,  until  the  termination  of  the 
commission,  which  will  be  on  the  fifteenth  of  September  next.  It  is 
desirable,  also,  in  case  the  commissioners  should  disagree  upon 
any  claims  which  might  be  early  presented  to  them,  that  the  umpire 
should  be  able  to  attend  their  hearing  in  London,  if  requisite,  as 
promptly  as  may  be  desired  by  the  parties ;  although  an  adjournment 
might,  in  some  cases,  be  arranged,  or  the  umpire  may,  under  some 
circumstances,  be  communicated  with  abroad.    The  undersigned  think 


ft 


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456 


APPENDIX. 


it  due  to  you,  and  right,  to  mention  the  services  which  may  devolve 
on  the  office  of  umpire,  hut  they  sincerely  and  anxiously  trust  that  it 
may  he  consistent  with  your  engagements  to  attend  to  its  duties,  and 
they  would  he  most  happy,  and  conceive  themselves  fortunate,  to  hear 
from  you  to  that  effect. 

In  conclusion,  the  undersigned  would  ohserve  that  as  the  time 
during  which  the  commission  is  to  sit  is  limited,  they  should  esteem 
your  early  answer  a  personal  favor,  inasmuch  as  in  the  event  of  your 
refusal,  a  contingency  which  they  trust  will  not  arise,  a  new  appoint- 
ment, or  the  ^adoption  of  the  alternative  pointed  out  in  the  conven- 
tion— in  itself  highly  undesirable  in  every  respect — will  become 
necessary. 

The  undersigned  are,  with  the  highest  consideration  of  respect, 
your  very  obedient  servants, 

N.  G.  UPHAM, 
*  American  Commissioner. 


Mr.  Van  Buren. 


EDMUND  HOKNBY, 

Her  3IaJesty's  Commissioner 


Letter  from  Mr.   Van  Buren  to  the  Commissioners,  declining  the  ap- 
pointment of  Umpire. 

Florence,  October  22,  1853. 

Gentlemen  :  I  have  had  the  honor  to  receive  your  letter  enclosing 
a  copy  of  a  convention  for  the  adjustment  of  certain  claims  between 
Great  Britain  and  the  United  States,  and  informing  me  that  you  had 
agreed  upon  me  as  the  umpire,  required  to  be  appomted  by  the  terms 
of  the  convention,  to  decide  finally  in  case  of  disagreement  between 
the  commissioners. 

The  high  character  of  the  parties  to  the  submission,  the  different 
relations  in  which  I  stand  towards  them,  with  the  importance  of  the 
interests  to  be  adjusted,  and  the  cordiality  with  which  your  choice 
appears  to  have  been  made,  give  to  the  compliment  it  conveys  a  value 
of  which  I  am  by  no  means  insensible.  No  one  can  appreciate  more 
highly  than  I  do  the  importance,  not  to  themselves  only,  but  to  the 
world,  of  the  maintenance  of  friendly  relations  between  our  respective 
countries ;  and  a  satisfactory  execution  of  this  convention  cannot  fail 
to  exert  a  most  salutary  influence  in  that  direction.  In  view  of  mo- 
tives so  impressive,  I  do  most  sincerely  regret  to  find  myself  con- 
strained, by  considerations  which  I  dare  not  disregard,  to  decline  the 
appointment  you  have  done  me  the  honor  to  make.  After  spending 
the  principal  part  of  my  life  in  the  public  service,  I  have  for  several 
years  withdrawn  myself  not  only  from  all  personal  participation  in 
public  affairs,  but  from  attention  to  business  of  every  description,  save 
only  what  has  been  indispensable  to  the  management  of  my  private 
affairs.  By  adhering  to  this  course  I  have  secured  to  myself  a  degree 
of  repose  suitable  to  my  age  and  condition,  and  eminently  conducive 


APPENDIX. 


457 


levolvd 
that  it 
3S,  and 
to  hear 

le  time 
esteem 
of  your 
ppoint- 
conven- 
become 

respect, 


loner 


the  ap- 

1853. 

enclosing 

between 

you  had 

he  terms 

between 

different 
ce  of  the 
ur  choice 
8  a  value 
ate  more 
lit  to  the 
espective 
nnot  fail 
vv  of  mo- 
self  con- 
'cline  the 
spending 
•r  several 
mtion  in 
ion,  save 
y  private 
' a  degree 
jonducive 


to  my  happiness,  and  nothing  could  he  more  repugnant  to  my  feelings 
than  to  depart  from  it  now. 

Still,  if  the  matters  in  contestation  consisted  of  a  single  question, 
which  I  could  dispose  of  by  one  decision,  in  case  of  difference  between 
the  commissioners,  I  would  not,  under  the  circumstances,  feel  myself 
at  liberty  to  decline  tbe  responsibility  of  the  umpirage. 

But  my  knowledge  of  the  character  of  joint  commissions  like  the 
present,  and  their  almost  invariable  tendency  to  be  kept  on  foot  long 
after  the  expiration  of  the  time  first  agreed  upon  for  their  conclusion, 
satisfies  me  that  I  ought  not  at  my  time  of  life  to  accept  a  trust  which, 
besides  exposing  me  to  serious  inconvenience,  must  control  my  per- 
sonal movements  for  a  considerable  length  of  time,  and  may  postpone 
my  return  to  the  United  States  to  a  period  far  beyond  that  which 
would  be  at  present  anticipated. 

Allowing  myself  to  hope  that  the  considerations  to  which  I  have 
adverted  will  satisfy  you  that  I  estimate,  as  I  ought,  tfie  honor  which 
has  been  conferred  upon  me,  and  have  not  declined  its  acceptance  on 
inadequate  grounds, 

I  am,  gentlemen,  with  great  respect,  your  obedient  servant, 

M.  VAN  BUREN. 

Edmund  Hornby  and  N.  G.  Upham,  Esqrs., 

Commissioners,  (fee,  (fee. 


Letter  of  the  honorable  N.  G,  Upham  to  the  British  commissioner,  pro- 
posing the  appointment  of  Joshua  Bates,  Esq.,  as  umpire. 

London,  October  31,  1853. 

Sir:  Your  letter  of  the  lltli  ultimo,  signifying  your  readiness  to 
agree  on  Mr.  Van  Buren,  required  no  reply,  as  the  appointment  was 
at  once  made  in  conformity  to  it.  The  information  from  him,  how- 
ever, which  has  just  been  received,  renders  it  necessary  that  further 
proceedings  be  had  on  the  subject ;  and  now  I  renew  the  proposition 
verbally  made  to  you  some  days  since,  that,  on  the  contingency  of  his 
declining,  I  should  propose  Joshua  Bates,  esq.,  of  London,  of  the  firm 
of  Baring,  Brothers  &  Co.,  a-s  umpire. 

Mr.  Bates  is  an  American-born  citizen,  who  in  early  life  gained 
such  reputation  for  intelligence,  energy,  honorable  character,  and 
business  acquirements,  as  to  cause  a  demand  for  his  services  in  the 
leading  banking  house  of  this  country  and  the  world.  His  long  resi- 
dence in  England  in  that  position  and  his  great  success  has  estab- 
lished him  here  permanently  as  his  adopted  home,  and  has  given  him 
a  standing  and  character  that  should  impart  full  confidence  to  the 
claimants  of  both  countries,  as  well  as  to  the  governments  themselves, 
in  the  intelligence,  integrity,  and  impartiality  of  his  decisions. 

I  hope  you  will  concur  with  me  in  the  fitness  and  propriety  of  the 
selection  of  Mr.  Bates,  and,  with  the  commission  thus  organized,  I 
shall  have  the  fullest  confidence  in  the  prospect  of  a  just  and  satis- 


^t 


--^.  _ 


ik. 


468 


APPENDIX. 


factory  adjustment  of  all  outstanding  claims  of  the  citizens  of  either 
government  against  our  respective  countries. 

I  am,  with  the  highest  respect^  your  obedient  servant, 

N.  G.  UPHAM. 
Edmund  Hornby,  Esq., 

Commissioner  of  Claims, 


Letter  from,  Edmund  Hornby,  Esq.,  to  the  American  Commissioner, 
concurring  in  the  appointment  of  Joshua  Bates,  Esq. ,  as  Umpire. 

London,  Noveniber  1,  1853. 

Sir  :  I  have  to  acknowledge  the  receipt  of  your  communication  of 
the  31st  ultimo^  in  which,  after  stating  that  Mr.  Van  Buren's  refusal 
to  accept  the  appointment  of  umpire  under  the  mixed  commission,  had 
rendered  the  consideration  of  some  other  individuals  fitted  for  the  office 
necessary,  you  propose  to  me  the  name  of  Joshua  Bates,  esq.,  of  the 
firm  of  Baring  Brothers  &  Company. 

In  reply,  I  beg  to  say  that  I  am  quite  willing  to  concur  in  the  nomi- 
nation of  that  gentleman,  having  every  confidence  in  his  iijtegrity 
and  unblemished  reputation. 

I  am,  sir,  with  the  highest  respect,  your  very  obec^ient  servant, 

EDMUND  HORNBY. 

N.  G.  Upham,  Esq., 

Commissioner  of  Claims,  dc. 


Letter  from  the  Commissioners  to  Joshua  Bates,  Esq. ,  communicating 

his  appointment  as  Umpire. 

9  Lancaster  Place,  Strand, 

November  1,  1853. 

Sir  :  Enclosed  you  will  find  a  copy  of  the  convention  for  the  adjust- 
ment of  certain  claims  between  Great  Britain  and  the  United  States. 

The  undersigned  have  been  appointed  commissioners  on  the  part  of 
the  two  governments  to  carry  the  provisions  of  the  convention  into 
effect,  and  the  first  meeting  was  holden  by  them  on  the  15th  of  Sep- 
tember ultimo ;  since  that  time  they  have  had  frequent  conferences! 
in  reference  to  the  appointment  of  an  umpire,  and  have  at  length 
been  able  to  unite  cordially  in  the  nomination  of  yourself,  as  a  gen- 
tleman possessing  in  a  high  degree  the  essential  qualities  of  an  umpire, 
namely,  high  character,  and  freedom  from  all  personal  and  national 
bias. 

They  believe,  moreover,  that  your  acceptance  of  the  office  would  be 
highly  acceptable  to  their  respective  peoples  and  governments,  and 
they  theretore  venture  to  express  the  hope,  in  apprising  you  of  this 
selection,  that  it  may  be  consistent  with  your  engagements  to  act  in 
the  capacity  indicated. 


APPENDIX. 


469 


Ltlier 


loner, 
re. 

153. 

bion  of 
refusal 
n,  had 
eofl&ce 
of  the 

)  nomi- 
tegrity 

It, 
IBY. 


licating 


853. 

adjust- 
States. 
part  of 
on  into 
of  Sep- 
■erence^ 
length 
a  gen- 
umpire, 
ational 


ould  be 

ts,  and 

of  this 

0  act  in 


In  conclusion,  the  undersigned  would  observe  that,  as  the  time 
during  which  the  commission  is  to  sit  is  limited,  they  should  esteem 
your  early  answer  a  personal  favor,  inasmuch  as,  in  the  event  of  your 
refusal,  (a  contingency  which  they  trust  will  not  arise,)  a  new  ap- 
pointment, or  the  adoption  of  the  alternative  pointed  out  in  the  con- 
vention, for  many  obvious  reasons  highly  undesirable  in  itself,  will 
become  necessary. 

The  undersigned  are,  with  the  highest  consideration  and  respect, 
vour  obedient  servants, 

N.  G.  UPHAM, 

American  Commissioner. 


Joshua  Bates,  Esq. 


EDMUND  HORNBY, 

Her  Majesty's  Commissioner 


'■*-tL 


Letter  from  Joshua  Bates,  Esq.,   to  the  commissioners,  accepting  the 

appointment  of  Umpire. 

London,  8  Bishopsgate  Street  within, 

November  2,  1853.  ' 

Gentlemen  :  I  have  received  the  letter  which  you  have  done  me  the 
honor  to  address  to  me,  under  yesterday's  date,  by  which,  iii  virtue  of 
the  power  conveyed  by  the  convention  between  Great  Britain  and  the 
United  States,  signed  at  London,  the  8th  of  February,  1853,  you  have 
appointed  me  to  act  as  arbitrator  or  umpire  in  case  you  should  not  be 
able  to  agree  in  the  settlement  of  any  claim  or  claims  embraced  in 
that  convention  or  treaty  ;  and  I  have  the  honor  to  inform  you  that  I 
accept  the  appointment,  and  am  ready  to  make  the  required  declara- 
tion whenever  it  may  suit  you  to  appoint  a  day  for  that  purpose. 

I  have  the  honor  to  be,  gentlemen,  vour  obedient  servant, 

JOSHUA  BATES. 

N.  G.  Upham, 

Commissioner  of  the  United  States. 

Edmund  Hornby, 

Commissioner  of  Great  Bruain, 

No.  9  Lancaster  Place,  Strand. 


m 


*.  Kv. 


460 


APPENDIX. 


Letter  from  the  commissioners  to  his  excellency  James  Buchanan,  United 
States  minister  to  Great  Britain,  proposing  an  extension  of  the  term  of 
the  commission;  a  counterpart  of  which  letter  was  also  addressed  to 
the  Earl  of  Clarendon,  her  Majesty's  Secretary  of  State  for  Foreign 
Affair§. 

Office  of  the  Commission  of  Claims, 

Lancastor  Place,  June  'J,  1854. 

Sir  :  As  commissioners  under  the  convention  of  February,  1853,  for 
settling  outstanding  claims  between  Great  Britain  and  the  United 
States,  we  have  the  honor  to  address  your  excellency  in  reference  to 
the  duration  of  the  commission. 

By  that  convention  the  commissioners  are  bound  to  "  examine  and 
decide  upon  every  claim  thtt  may  be  preferred  or  laid  before  them 
within  one  year  from  the  day  of  their  first  meeting,"  and  it  is  further 
stipulated  that  the  claimants  shall  have  six  months,  and  under  some 
circumstances  nine  months,  from  that  day,  within  which  to  present 
their  claims. 

The  commissioners  met  on  the  15th  of  September  last,  and  the 
effect  of  the  time  granted  by  the  convention  to  the  claimants,  within 
which  to  present  their  claims,  has  been  practically,  in  a  great  ma- 
jority of  cases,  to  postpone  such  presentment  to  the  last  moment ;  and 
in  some  cases  the  claimants  have  been  unable  as  yet  to  complete  and 
present  their  testimony.  Under  these  circumstances,  the  year  within 
which  the  commissioners  are  to  decide  upon  the  claims  is  practically 
reduced  to  a  few  months,  and  as  it  may  be  necessary  to  call  in  the  as- 
sistance of  the  umpire  in  some  of  the  cases,  (a  necessity  which  the 
commissioners  trust  will  not  often  arise,)  they  feel  that  it  will  be  im- 
possible for  the  umpire  to  devote  the  necessary  time  to  such  referred 
claims  prior  to  the  close  of  the  commission. 

By  the  provisions  of  the  convention  all  claims  arising  since  1814, 
not  presented  fo  the  commissioners  and  allowed  by  them,  are  to  be 
finally  barred.  For  this  reason,  the  agents  for  the  governments  have 
adopted  the  course  of  presenting  all  claims  on  the  files  of  either  gov- 
ernment since  that  time ;  and  though  very  many  of  these  claims  are  of  a 
character  that  have  not  been  urged  by  either  government,  and  will  be 
disallowed,  yet  they  all  require  an  examination  and  decision,  while 
some  of  the  claims  in  controversy  involve  principles  requiring  much 
labor  and  investigation.  One  hundred  and  twenty  cases  have 
been  already  presented,  and  amongst  them  are  several  claims  made 
on  behalf  of  a  great  number  of  individuals ;  so  that,  in  fact,  that  num- 
ber will  be  the  least  which  the  commissioners  will  be  called  upon  to 
decide. 

In  view,  therefore,  of  the  uncertainty  of  being  able  to  complete  the 
business  of  the  commission  within  the  time  limited,  and  having  regard 
in  such  case  to  the  necessity  of  the  contracting  parties  entering  into  a 
new  treaty  for  the  purpose  of  continuing  the  commission — a  proceeding 
which  will  require  the  ratification  of  the  Senate  of  the  United  States 
before  the  close  of  its  present  session — the  commissioners  respectfully 


m 


APPENDIX. 


461 


United 
term  of 
issed  to 
foreign 


L854. 

B53,for 
United 
ence  to 

line  and 
re  them 
I  further 
ler  some 
present 

and  the 
!j  within 
reat  ma- 
ent ;  and 
slete  and 
ir  within 
•actically 
n  the  as- 
irhich  the 
,11  he  im- 
referred 

ace  1814, 
are  to  he 
ents  have 
ther  gov- 
is  are  of  a 
id  will  he 
on^  while 
ng  much 
ses    have 
ims  made 
that  num- 
d  upon  to 

aplete  the 
ng  regard 
ing  into  a 
iroceeding 
ted  States 
ispectfully 


suhmit  to  your  consideration  the  expediency  of  extending  the  time  for 
the  close  of  the  commission  for  some  hrief  period  ;  and  would  express 
their  helief  that  an  extension  for  the  term  of  four  months,  from  the 
15th  of  September  next,  would  he  sufficient  for  this  purpose. 

With  this  view,  and  in  order  more  fully  to  express  their  meaning, 
the  commissioners  enclose  a  draft  of  such  a  convention  as,  in  their 
judgment,  would  eflfect  the  object  proposed  ;  and  they  have  forwarded 
a  copy  of  the  same  to  the  Earl  of  Clarendon,  her  Majesty's  secretary 
of  state  for  foreign  affairs,  with  a  counterpart  of  this  letter  to  your 
excellency,  with  an  expression  of  a  hope  that  it  may  he  made,  at  an 
early  day,  a  matter  of  conference  between  the  two  governments. 

With  sentiments  of  the  highest  consideration  and  respect,  we  are 
your  obedient  servants, 

N.  G.  UPHAM, 

United  States  Commissioner. 

EDMUND  HORNBY, 

British,  Commissiwier. 
To  his  Excellency  James  Buchanan, 

United  States  Minister  to  Great  Britain^  dc,  d:c. ,  dc. 

In  pursuance  of  the  foregoing  recommendation,  a  convention  was 
entered  into  between  the  two  governments  for  an  extension  of  the 
term  of  the  commission,  agreeably  to  the  draft  proposed,  which  was 
signed  at  Washington,  July  17, 1854,  and  ratifications  were  exchanged 
at  London,  August  18,  1854,  of  which  due  notice  was  communicated 
to  the  commissioners. 

A  copy  of  said  convention  will  be  found  in  the  journal  of  the  com- 
missioners, page  37. 


Copy  of  Mr.  Hannen's  Protest  in  the  Claim  of  William  Cook  and 

OTHERS. 

To  the  honorable  the  Commissioners  under  the  Convention  of  February  8, 
1853,  beftoeen  her  Britannic  Majesty  and  the  United  States  of  America, 
for  the  settlement  of  outstanding  claims: 

Gentlemen  :  A  claim  has  been  presented  in  behalf  of  William  Cook 
and  others,  natives  of  the  United  States,  asserting  themselves  to  be 
the  next  of  kin  of  one  Frances  Mary  Shard,  widow,  who  died  intes- 
tate in  1819,  and  of  whose  effects  administration  was  afterwards 
granted  to  George  Maule,  esq.,  as  nominee  of  the  crown. 

The  claim  is  presented  to  the  commissioners,  under  the  convention 
of  February  8, 1853,  on  the  assumption  that  the  proceeds  of  the  effects 
of  the  intestate  are  "now  in  the  custody  of  her  Majesty's  govern- 
ment," and  that,  therefore,  this  is  a  claim  "by  citizens  of  the  United 
States,  upon  the  government  of  her  Britannic  Majesty,"  within  the 
meaning  of  the  convention. 

I  have  the  honor  to  submit,  in  behalf  of  her  Majesty's  government. 


462 


APPENDIX. 


that  the  claim  of  William  Cook  and  others  is  not  one  of  the  class  for 
the  settlement  of  which  the  convention  was  entered  into,  and  that  it 
is  not  within  the  jurisdiction  of  the  honorable  commissioners  appointed 
under  that  convention. 

It  is  believed  that  the  following  brief  statement  of  the  law  of  this 
country,  on  the  subject  of  the  administration  of  the  eflfects  of  intestates, 
whose  next  of  kin  cannot  be  discovered,  will  fully  establish  the  fore- 
going propositions. 

Upon  the  death  of  a  person  intestate,  administration  of  his  personal 
effects  is  granted  by  the  ordinary  to  the  next  of  kin,  in  whom,  upon 
such  appointment,  the  property  in  the  effects  is  completely  vested. 

If  no  next  of  kin  can  be  discovered,  administration  is  granted  to  a 
nominee  of  the  crown  as  ultimus  Tiieres,  and  in  such  nominee  the  pro- 
perty of  the  intestate  is  vested  in  the  same  way  as  in  an  ordinary  ad- 
ministrator. 

The  crown  would,  through  its  nominee,  be  at  liberty  to  dispose  of 
the  intestate's  property  for  its  own  private  purposes,  and  in  some  cases 
does  so,  but  in  general  the  eflfects  of  the  intestate  are,  with  the  excep- 
tion of  a  small  per  centage,  distributed  amongst  such  persons  as  show, 
to  the  satisfaction  of  the  crown,  that  they  had  some  claim  upoa  the 
deceased  person,  and  would  probably  have  been  objects  of  his  bounty 
had  he  made  a  will.  Bonds  are,  however,  taken  from  these  persons 
to  restore  the  amounts  received  by  them,  should  the  letters  of  admin- 
istration granted  to  the  nominee  of  the  crown  be  afterwards  revoked, 
by  reason  of  the  discovery  of  the  next  of  kin.  In  the  event  of  such 
a  discovery  being  made,  the  course  pointed  out  by  law  for  the  person 
claiming  to  be  next  of  kin  to  pursue,  is  by  citation  in  the  ecclesias- 
tical court,  to  procure  the  letters  of  administration  already  granted  to 
be  revoked,  and  fresh  letters  to  be  granted  to  the  person  establishing 
his  claim  as  next  of  kin. 

In  illustration  of  this  statement,  the  case  of  Rutherford  vs.  Maule, 
Haggard's  Ecclesiastical  Reports,  may  be  referred  to,  in  which  the 
administration  of  this  intestate's  effects  was  the  subject  of  litiga- 
tion— Rutherford  asserting  himself  to  be  the  next  of  kin  of  Mrs.  Shard, 
and  seeking  the  revocation  of  the  letters  granted  to  the  nominee  of  the 
crown. 

Under  these  circumstances,  I  submit  that  the  claim  of  William 
Cook  and  others  is  not  a  claim  "  by  citizens  of  the  United  States  upon 
the  government  of  her  Britannic  Majesty,"  within  the  meaning  of  the 
first  article  of  the  convention,  since  the  government  has  no  control 
over  or  interest  in  the  subject-matter  of  dispute.  The  claim  is  between 
the  alleged  next  of  kin  and  the  nominee  of  the  crown,  representing 
the  sovereign  in  his  personal  capacity,  and  is  as  much  a  private  litiga- 
tion as  if  the  letters  of  administration  sought  to  be  revoked  had  been 
granted  to  a  private  individual. 

It  is  also  to  be  observed,  that  the  ecclesiastical  courts  are  the  tribu- 
nals which  have  jurisdiction  in  such  matters,  to  the  exclusion  of  all 
other  courts  in  this  country;  that  they  have  a  system  of  practice 
adapted  to  this  subject,  and  means  of  obtaining  evidence,  which  the 
commissioners  appointed  under  the  convention  do  not  possess. 

The  object  of  the  convention  appears  to  have  been  to  erect  a  tribunal 


tss  for 
Dhat  it 
ointed 

of  this 
states, 
e  fore- 

jrsonal 
,  upon 
;ed. 

ed  to  a 
)e  pro- 
ftvy  ad- 
ipose of 
Qc  cases 
!  excep- 
s  show, 
poa  the 
bounty 
persons 
admin- 
•evoked, 
of  such 
e  person 
cclesias- 
anted  to 
Wishing 


APPENDIX. 


'163 


to  determine  disputes,  for  the  decision  of  which  no  competent  court 
existed.  It  cannot  have  been  intended  to  oust  the  ordinary  courts  of 
law  of  either  country  of  their  jurisdiction,  and  to  transfer  cases  pecu- 
liarly within  their  province  to  a  court  of  exceptional  character,  and 
provided  with  very  limited  means  of  investigation. 

For  these  reasons  I  submit,  that  the  claim  of  William  Cook  and 
others  is  not  within  the  jurisdiction  of  the  honorable  commissioners, 
and  should  not  be  entertained  by  them. 

I  have  thought  it  right  at  once  to  present  these  observations,  in 
order  that  the  parties  interested  may  be  informed  as  soon  as  possible 
of  the  objection  which  exists  to  the  prosecution  of  their  claim  before 
the  commission,  that  they  may  be  enabled  to  take  such  other  proceed- 
ings as  they  may  be  advised. 

In  the  event  of  the  claim  being  persisted  in,  I  shall  crave  leave  to 
address  some  further  observations  in  support  of  the  view  I  now  have 
the  honor  of  submitting  to  your  attention. 

I  am,  gentlemen,  your  obedient  servant, 

JAMES  HANNEN. 


Maide, 

lich  the 

litiga- 

Shard, 

lee  of  the 

William 
tes  upon 
ig  of  the 

control 

jbetween 

lesenting 

)e  litiga- 

lad  been 

le  tribu- 

^n  of  all 

practice 

lich  the 


:U    .' 


tribunal 


1  i: 


.♦« 


;;, 


INDEX   OF   CASES   REPORTED. 


COSTS. 

1.  A  vessel  seized  on  a  charge  of  bein|f  in  British  waters,  without  having  ship's  papers 
on  board,  and  for  being  engaged  in,  and  equipped  for,  the  slave  trade,  was,  on  trial 
acquitted,  the  court  finding  such  charges  "  to  be  without  foundation,  and  destitute 
of  any  probable  cause  to  sustain  them."  The  vessel  was,  however,  assessed  in  costs, 
for  which  she  was  sold,  held,  that  the  judgment  imposing  costs  was  without  legal 
ground  to  sustain  it,  and  should  be  annulled,  and  damages  in  full  be  allowed  for  the 
seizure. — Barque  Jones 

2.  Courts  have  no  discretionary  power  to  tax  costs  in  a  case  against  the  respondent, 
whore  no  probable  cause  for  seizure  existed 

DEBENTURE  BONDS. 


Ps|e 


83 


16. 


1.  Where  debenture  bonds  had  been  given  on  importation  of  cual,  and  by  act  of 
March  3,  1853,  the  Secretary  of  the  Treasury  was  authorized  to  cancel  such  bonds 
given  prior  to  July  1,  1850,  held  that  it  entitled  the  owners  to  a  drawback  for  the 
duty  on  coal. — Great  Western  Steamship  Company 338 

DOMICIL. 

1.  Where  claimants,  who  wore  originally  British  sabjects,  had  become  domiciled  in 
Mexico  and  continued  to  reside  there,  engaged  in  trade,  during  war  between  Mexico 
and  the  United  States,  held  that  tliey  had  so  far  changed  their  national  character 
that  they  could  not  be  considered  "  British  subjects  "  witliin  the  meaning  of  these 
terms  as  used  in  the  convention  for  the  settlement  of  claims  of  British  subjects 
upon  the  government  of  the  United  States. — Lavrenls'  case 120 

2.  A  domiciled  merchant  of  the  United  States  or  Great  Britain,  resident  in  the  coun- 
try of  the  other,  has  no  right  to  the  action  of  this  commission  in  matters  of  current 
business  embraced  within  the  ordinary  jurisdiction  of  the  courts  of  the  coi'.ntry 
where  he  resides.  By  treaty  of  July  3,  1815,  such  persons  "are  entitled  to  protec- 
tion and  security,  but  are  to  be  subject,  always  to  the  laws  and  statutes  of  the  two 
countries  respectively." — Kenworthy^s  case 334 

.*).  British  merchants  who  continued  residents  in  Mexico,  engaged  in  trade,  after  war 
had  broken  out  between  that  country  and  the  United  States,  held  as  alien  enemies, 
and  not  entitled  to  recovery  under  this  convention,  as  already  holden  in  Laurents' 
case. — Uhde's  case .• 436 


DRAWBACK. 

1.  Tlie  act  of  March  2,  1799,  regulating  the  collection  of  duties  on  imports  and  ton* 
nage  so  as  to  entitle  the  owners  to  a  drawback  for  duties  paid  by  them  on  exporta- 
tion, held  not  to  allow  drawback  on  coal  imported,  and  subsequently  used  on  the 
voyage,  by  outward  bound  steamers. — Great  JVeslem  Steamship  Company 338 

30 


466 


INDEX  OF  CASES    REPORTED. 


Ptge. 
Q»  Tho  act  of  March  3,  185.'),  wliicli  authorized  tha  cancelling  of  debenture  bondi, 

given  prior  to  July  1,  1850,  on  coal  imported,  which  wai  aftorwardi  coniunied  at 

■ea,  Mil  to  entitle  partie*  to  a  drawback  on  the  coal  fur  which  the  IwndH  were  given.      398 

DURESS. 

1.  Evidence  that  foar«  were  entertained  leat  other  iuitii  might  bo  inititutod,  or  aoizurea 
might  be  made  unleiia  a  auit  wai  adjuated,  or  a  general  prejudice  to  buainoaa  might 
ariio  from  controveriy  with  tho  government,  does  not  conatitute  such  evidence  of 
durcBi  ui  to  avoid  a  aettlement. — Ktnworthy'i  ea$e 334 

EXPORTATION. 

1.  Shipment  of  coal  for  conaumption  at  aea  on  outward  bound  ateamera,  ia  not  an  tx- 
porlation  within  the  meaning  of  the  atatute,  entitling  tho  party  to  drawback  under 
the  act  of  March  2,  1799.— Great  Weittm  Sttamhip  Company 338 

FISHERIES. 

1.  Conatruction  of  treaty  of  1818  relative  to  fiaheriea  — Sci^ootur  Washington 170 

9.  The  clauae  in  aaid  treaty  in  which  the  United  Statea  renounced  the  liberty  "  to 
take,  dry,  and  cure  fuh,  on  certain  coaats,  bays,  harbora,  and  croeka  of  hia  Britan- 
nic Majeaty'a  dominiona  of  North  America,"  held  not  to  include  the  Bay  of  Fundy. 

3.  The  Bay  of  Fundy  held  to  be  an  open  arm  of  tho  lea,  tio  aa  not  to  be  aubject  to  the 
excluaive  right  of  Great  Britain  aa  to  iiaheriea • 

FLORIDA  BONDS. 

See   TERRITORIAL   GOVERNMENTS,  1,  2,  3,  4. 


lb. 


lb- 


See  FiiHERiEi,  '2,  3. 


FUNDY,  BAY  OF. 


GOVERNMENT. 


1.  Aiaumption  of  the  acta  of  a  citizen  by  hia  government  aa  ita  own  acts,  doea  not 
neceaaarily  bar  procuedinga  against  auch  person  by  a  foreign  government. — AUxandtr 
McLtod 314 

2.  Where  a  citizen  of  another  government  was  arrested  in  this  country  for  a  criminal 
offence,  and  claimed  his  discharge  on  the  ground  that  the  acts  complained  of  were 
done  under  the  authority  of  his  government,  time  must  bo  had  for  the  action  of  the 
proper  tribunals  on  sucli  plea,  and  the  ultimate  decision  of  a  court  in  tho  last  resort, 
where  the  same  becomes  necessary. — Claim  for  damage  against ib. 

3.  Neither  does  any  claim  for  damage  arise  against  such  foreign  government,  where 
the  means  provided  by  law  for  the  adjustment  of  such  questions  are  less  speedy  than 
would  be  desirable,  and  may  require  amendment.  Or  error  has  arisen,  in  courts  of 
subordinate  jurisdiction,  from  which  appeal  might  have  been  taken,  or  correction 

had lb. 

INTEREST. 

1.  Where  duties  on  goods  were  paid  under  protest,  on  the  ground  that  a  higher  rate 
of  duty  was  demanded  than  was  authorized  by  the  treaty  of  commerce  between  the 
United  States  and  Great  Britain,  the  act  itself  having  expressly  provided  *■  that 
nothing  contained  in  it  should  conflict  with  that  treaty,"  and  immediate  demand 


INDEX   OF  CASES   REPORTED. 


467 


338 


170 


314 


,..      lb. 

are 
lan 
I  of 
ion 
.      lb. 


late 

Itlie 

Ihat 

tnd 


of  repayment  having  l>een  made  through  the  minister  of  Great  Britain,  at  Waih* 
ington,  htld  that  intoroit  ihouid  bo  allowed  on  the  amount  wrongfully  collected  from 
the  time  of  payment.— Roif/Vty  Pattiton  i(  Co 301 

9.  Where  it  appeared  that  the  duty  waa  paid  without  complaint  many  yean  aince,  and 
that  the  claim  wa«  not  brought  tu  the  notice  of  the  government,  and  no  demand  wai 
made  for  repayment  until*  quite  recently ;  held  that,  under  luch  circunutance*, 
interest  should  not  be  allowed. — Duta  on  Cotton  (ioods — C,  tVirgman,  agent 311 

3.  Where  drawback  for  duties  was  allowed,  but  was  refused,  under  a  controversy  as  to 
the  construction  of  a  statute,  interest  was  allowed  from  the  time  of  the  demand. — 
Gnat  Wtitem  Sttanuhip  Company 338 

INTERNATIONAL  CLAIMS. 

I.  Whore  a  claim  was  presented  by  American  citizens  as  next  of  kin  and  heir  of  a 
deceased  intestate  in  England,  whoso  property  had  gone  into  custody  of  the  crown 
for  want  of  heirs  ;  htld  that  it  did  not  come  within  the  jurisdiction  of  the  convention, 
it  not  being  within  the  class  of  cases  designed  for  the  adjudication  of  the  commission. 
—Cook  Sfah 31 

3.  The  fact  tliat  a  case  is  brought  within  the  letter  of  the  convention,  is  not  conclusive 
as  to  the  question  of  jurisdiction.  The  commissioners  may  go  behind  this  to  inquire 
whether  it  is  within  the  class  of  cases  that  have  been  recognized  as  matters  of  inter- 
national controversy lb. 

3.  Debts  due  on  loans  made  by  citizens  to  a  foreign  country  are  not  the  subject  ordi- 
narily of  international  cognizance,  but  the  parties  are  left  to  thoir  own  remedies. — 
Hoiford's  ea»e,  Texas  bonds 383 

4.  Where  claims  for  indebtedness  against  Texas  had  never  been  presented  or  recog- 
nized by  the  British  government  as  a  subject  of  national  interposition,  prior  to  the 
convention  of  February  8, 1853,  and  provision  had  been  previously  made,  and  acts 
were  then  pending,  relative  to  adjustment  of  the  same,  between  Texas  and  the 
United  States ;  held  that  such  claims  were  not  included  in  the  unsettled  claims 
referred  to  the  commissioners,  and  that  they  had  no  jurisdiction  over  them /(• 

5.  Where  a  ship  containing  property  of  an  English  subject  was  seized  by  a  piratical 
vessel  on  the  high  seas,  and  was  sultsequently  recaptured  by  a  United  States  cruiser, 
and  the  ship  and  property  was  sold,  and  the  proceeds,  subject  to  certain  claims  of 
the  captors,  went  into  the  United  States  troa«nry ;  held  that  remuneration  should 
be  made  to  the  owner,  deducting  reasonable  expenses  and  salvage. — Houghton's 

case • 16] 

6.  Prior  to  the  extension  of  a  territorial  government  over  the  Oregon  country,  settlers 
had  gone  in  and  formed  themselves  into  a  temporary  government.  While  in  this 
condition,  war  occurred  with  the  Indians,  and  various  settlers  were  killed,  and  si.xty- 
four  persons  taken  into  captivity  by  them.  Application  was  made  to  the  Hudson's 
Bay  Company  for  assistance,  which  was  rendered,  and  through  their  agency  the 
captives  were  released.  Held  that  compensation  for  such  assistance  was  a  just 
claim  against  the  United  States,  and  was  allowed  by  the  commission, — Hudson's  Bay 
Company 164 

7.  Held,  also,  that  a  similar  claim  for  expenditures  incurred  in  procuring,  by  request 
of  American  officers  on  the  coast,  the  release  of  American  mariners,  who  had  been 
shipwrecked,  and  were  detained  as  captives  by  the  Indians,  should  be  allowed 76. 


468 


INDEX  OF  GASES   REPORTED. 


INTERNATIONAL  LAW. 


Page 


1.  International  law  is  paramount  to  local  or  municipal  law.  The  act  of  3  and  4, 
WiUiam  IV,  chap.  73,  abolishing  slavery  in  Great  Britain  and  her  dominions,  could 
not  overrule  the  rights  of  nations  who  have  not  abolished  such  institution.  Such 
nations  retain  the  riglit  to  hold  slaves  in  their  vessels  on  the  high  seas,  or  any  rights 
necessarily  incident  to  iuu  navigation  of  such  seas,  the  same  as  within  their  own 
jurisdiction. — Brig  Enttrpriie 182 

INTERNATIONAL  SETTLEMENTS. 

EFFECT,    WHEN    MADE,    ON    INDIVIDUAL    CLAIMS. 

1.  Where  a  citizen  of  Canada  was  arrested  in  the  State  of  New  York,  for  a  criminal 
offence  against  the  laws  of  the  State,  arising  from  his  being  engaged  in  the  destruc- 
tion of  the  steamer  Caroline,  in  New  York,  with  a  party  from  Canada,  during  an 
insurrection  in  that  province,  and  Great  Britain  demanded  his  release,  on  the  ground 
that  the  acts  complained  of  were  done  by  the  orders  of  that  government,  and  that  the 
nation  was  responsible  and  not  the  individual — and  where  the  difficulties  arising  from 
these  causes  were  afterwards  adjusted  between  the  two  governments — htld  that  such 
adjustment  barred  all  claims  of  citizens  of  either  country  against  the  other  for  indi- 
vidual damage  sustained  ;  and  that  such  cases  were  not  within  the  provisions  for 
the  settlement ' '  of  outstanding  claims, ' '  under  tiie  convention  of  February  8,  1853. — 
■Mexmier  McLeod 314 

INTERNATIONAL  UNION. 

EFFECT    ON  INDEBTEDNESS    OF    TIIE   STATES   UNITED. 

1.  The  united  government  is  clearly  liable  for  the  separate  debts  of  tiie  several  crovern- 
ments  combined,  as  a  general  rule  of  international  law. — HolfordU  ease,  Texas 
Bonds 382 

2.  A  pledge  of  the  revenues  of  the  government  is  in  the  nature  of  a  lien  to  the  creditor, 
and  is  binding  on  its  transfer  to  another  nation ;  but  quere,  whotiier,  in  certain 
cases,  such  lien  can  justly  extend  to  an  amount  clearly  beyond  the  value  of  any  such 
revenues,  so  as  to  operate  as  a  bar  to  intcrnalional  union Ih 

3.  Qttcre,  also,  where  a  nation  is  not  fully  merged  in  union  with  another,  but  retains 
independent  powers  and  jurisdictions,  whether  an  equitable  apportionment  of  its 
liabilities  may  not  be  made  between  the  two  governments,  as  a  preliminary  tu  such 
union,  without  a  just  ground  of  complaint  on  the  part  of  creditors ib. 

JURISDICTION. 

1.  A  removal  of  a  vessel,  seized  within  limits  of  a  court  of  competent  jurisdiction,  to  a 
remote  district,  for  trial  and  adjudication,  is  a  violation  of  the  rights  of  tlie  parties 
interested,  and  entitles  them  to  full  compensation  for  all  damage  incurred. — Bar-ne 
Jones , 4 84 

See  INTERNATIONAL  CLAIMS,  1,  3. 
See  INTERNATIONAL  SETTLEMENTS,  I. 

See  DOMiciL,  2. 

LICENSE  TO  TRADE  IN  TIME  OF  WAR. 

I.  During  the  war  between  the  United  States  and  Mexico,  application  was  made  to 
proceed  with  goods  across  the  United  States  to  Mexico,  for  trade  with  that  country, 
with  a  right  of  drawback  on  the  duties  paid.    License  was  granted ;  held  that  it  waa 


S< 


1. 


r 
a 

D 

b( 
lil 
St 
fri 


I.  El 

thJ 
ovJ 

2.  aI 


3. 


strd 
fori 


INDEX   OF  CASES  REPORTED. 


469 


•ge 


182 


314 


krn- 
.xai 
•  •  • 

tor, 
tain 
tuch 


ains 

its 

such 


to  a 
-rties 
or  'itf 


382 


fh 


lb. 


84 


adeto 
luDtry, 
lit  was 


a  mere  permiBsion  to  transmit  groods  to  tho  border,  with  Aill  notice  of  the  riski 
arising  from  a  state  of  war,  and  that  a  subeequent  necessary  detention  of  the  cara- 
van conveying  goods  >;.to  tho  interior  of  Mexico,  by  an  armed  force  invading  the 
country,  until  after  the  success  of  such  force  was  secured,  was  justifiable. — Ker- 
ford  Sc  Jenkin 351 

2.  Where,  after  the  capture  of  a  Mexican  port,  it  was  opened  to  trade  of  residents 
and  others,  subject  to  the  payment  of  certain  duties;  held  under  such  license  the 
character  of  alien  enemies  ceased,  and  where  the  United  States  had  taken  cogni- 
zance of  ti.<e  claims  of  such  residents,  as  of  British  subjects,  prior  to  the  convention, 

they  might  be  rightfiilly  embraced  as  claims  within  it. — Uhdt'i  cast 438 

3.  License  to  a  vessel  to  enter  and  discharge  a  cargo  does  not  free  her  iVom  the  claim 

of  payment  of  duties Ik 

LIMITATIONS,  STATUTE  OF. 

1.  The  statute  of  limitations  cannot  be  plead  in  bar  of  claims  of  citizens  of  other 
governments  arising  under  international  treaties. — Xing  tf  Grade — Barry,  agent. . . ,      305 

MARINERS  SHIPWRECKED. 

See   INTERNATIONAL   CLAIMS,  7. 

MUTINY. 

DUTY   IN    SUCH   CASE   ON   ARRIVAL    OF     VESSEL   IN   FOREIGN   PORT. 

1.  The  Creole  sailed  from  Hampton  Roads,  in  Virginia,  for  New  Orleans,  with 
slaves  on  board.  The  slaves  on  the  passage  rose  on  the  officers  and  crew,  severely 
wounded  tlie  captain,  the  chief  mate,  and  two  of  the  crew,  and  murdered  one  of 

the  passengers 241 

The  mate  was  then  compelled  to  navigate  the  vessel  to  the  Bahamas.  On  her  ar- 
rival she  was  taken  possession  of  by  tlie  American  consul,  authority  was  restored, 
and  measures  were  taken  to  send  the  vessel  to  the  United  States,  in  order  that  those 
slaves  charged  with  mutiny  and  murder  on  the  high  seas  might  be  tried.    The 

British  authorities  interfered  and  liberated  the  slaves • lb. 

Held  that  the  circumstances  under  whicii  the  Creole  was  compelled  to  enter  har- 
bor entitled  her  to  protection,  and  that  the  interference,  by  British  authoritien,  to 
liberate  the  slaves  in  such  case,  or  to  prevent  their  being  remanded  to  the  United 
States  for  trial,  was  in  violation  of  the  rights  of  citizens  of  the  United  States  as  a 
friendly  power,  and  of  the  law  of  nations ••••      /6. 

OCEAN,  FREE  RIGHT  TO  NAVIG.\TE, 

AND  RIGHTS  INCIDENT  TO  SUCH  NAVIGATION. 

1.  Every  country  is  entitled  to  tho  free  and  absolute  right  to  navigate  the  ocean,  as 
the  common  highway  of  nations  ;  and,  while  in  the  enjoyment  of  tiiis  right,  retains 

over  its  vessels  the  exclusive  jurisdiction. — The  Enterprise 187 

2.  A  vessel,  compelled  by  stress  of  weather,  or  other  unavoidable  necessity,  has  a 
riglit  to  seek  temporary  slieltcr  in  any  habor,  as  incident  to  her  right  to  navigate  the 
ocean,  until  the  danger  is  past,  and  she  can  proceed  in  safety lb, 

3.  When  a  vessel,  engaged  in  a  lawful  voyage  by  the  law  of  nations,  is  compelled,  by 
stress  of  weather,  or  other  inevitable  cause,  to  enter  a  harbor  of  a  friendly  nation 
for  temporary  siielter,  the  enjoyment  of  such  shelter,  being  incident  to  the  right  to 


470 


INDEX   OF  GASES  REPORTED. 


navigate  tho  ocean,  carries  with  it,  over  the  vessel  and  personal  relations  of  those 
on  board,  the  rij^hts  of  the  ocean,  so  far  as  to  extend  over  it,  for  the  time  being;,  the 
protection  of  the  laws  of  its  country 

.  The  act  of  3  and  4  William  IV,  eh.  73,  abolishing  slavery  in  Great  Britain  and 
her  dominions,  could  not  overrule  the  rights  of  nations,  as  sustained  by  these  propo- 
sitions  


Page 


187 


Ih 


PEACE,  TREATY  OF. 

EFFECT  OF  PERIODS  FIXED  FOR  ITS  COMMENCEMENT. 

1.  In  a  treaty  of  peace,  where  it  was  stipulated  that,  within  certain  limits,  peace  should 
take  effect  in  twelve  days,  and  in  others  at  different  periods,  ranging  from  thirty  to 
forty,  sixty,  and  ninety  days;  held  that  sucli  an  agreement  was  to  be  construed  as  an 
acknowledgment  by  the  parties  that,  with  due  diligence,  notice  might  be  given,  in 
those  limits,  within  the  times  named,  and  tne  parties  bound  themselves  thereby  to  ac- 
cept such  term  as  couitructive  notice  of  such  peace. — Schooner  John 437 

RESTORATION  OF  PROPERTY  TAKEN  AFTER  PEACE. 

S.  ^here  it  was  provided  that  vesEels  and  their  effects  taken  within  such  limits,  after 
the  time  stipulated  when  peace  should  exist,  "  should  be  restored  ;"  held  it  was  no 
excuse  if  such  vessel  was  afterwards  cast  away  and  lost,  and  therefore  could  not  be 
returned  to  the  owners,  but  that  compensation  must  be  made. 

The  party  in  such  case  must  be  held  as  a  wrong  doer  from  the  outset,  and  bound  to 
make  full  restitution lb. 


See  International  Claims,  5. 


PIRACY. 


SLAVERY. 


1.  No  one  State  has  a  right  to  control  the  action  ofanother  government  on  this  subject. 
Slavery  is  not  prohibited  by  the  laws  of  nations,  and  rights  under  it  are  not  limited 
by  municipal  lav/s  where  they  come  in  conflict. — The  Enterprize 187 

STRESS  OF  WEATHER. 
See  Ocean,  Right  to  Navigate,  2,  3. 

SUITS,  COMPROMISE  OF. 

1.  Where  a  British  subject,  who  was  domiciled  in  New  York,  and  engaged  in  mercan- 
tile business  there,  was  sued  for  fraudulent  invoices  of  goods  imported  by  him,  which 
suit  he  adjusted  with  the  government  by  payment  of  a  portion  of  tlie  sum  demanded  ; 
held  that  he  was  bound  by  such  adjustment  from  any  revision  of  the  suit  l)cfore  this 
commission. — Kenworthy's  case , 334 

TERRITORIAL  GOVERNMENTS,  POWERS  AND  OBLIGATIONS  OF 

1.  The  territorial  governments  of  the  United  States  are,  within  the  powers  confided  to 
them,  independent  jurisdictions  ;  and  any  debts  incurred  by  them  impose  no  obliga- 
tions on  the  general  government  for  their  discliarge.-*- F/oi'ic/a  bonds 246 

2.  The  facts  that  the  governor  of  the  Territory  is  appointed  by  the  general  government, 


3. 


t 

See 
Sec 


Page 

B 
B 

.      187 

d 
)- 
,.       lb 


M 
to 
an 
in 

BC- 
•  •  • 


iftor 
I  no 
t  be 

id  to 


427 


lb. 


iject. 
nited 


187 


Ircan- 

vliicli 

lided  ; 

this 


OF 

bed  to 

bliga- 

Iment, 


334 


246 


INDEX   OF   CASES    BEFORTED. 


471 


Page. 


IT'and  that  Congrress  has  power  ordisapprAval  of  the  acts  of  a  Territory,  or  is  tiie  owner 
of  large  tracts  of  land  in  tlie  Territory  which  is  not  subject  to  taxation,  do  not  vary 
this  position , 246 

PATMEKT   or    DEBTS,   NECESSAIIT    LXPEN'SES    OK. 

3.  A  provision  in  the  constitution  of  a  State,  ".that  no  oti'.er  or  greater  amount  of  tax 
or  revenue  shall  at  any  time  be  levied  than  may  be  required  fur  the  necessary  expenses 
of  government,"  does  not  prevent  taxation  for  the  payment  of  already  existing  pecu- 
niary obligations  of  the  government,  as  they  are  included  under  the  head  of  necessary 
expenses  of  the  government /(. 

4.  The  admission  of  a  State  into  the  Union  with  such  a  clause  in  its  constitution, 
imposes  no  liability  or  claim  on  the  general  government,  in  law  or  equity,  for  the 
payment  of  any  debts  of  said  State  contracted  while  a  Territory /6. 


See   INTERNATIONAL   CLAIMS,  4. 


TEXAS  BONDS. 


TREATIES. 


1.  Provision  by  treaty  for  assessment  of  no  greater  or  other  duties  than  those  levied  on 
goods  or  property  of  the  most  favored  nation,  binds  its  parties  to  perfect  equality  in 
all  imports  and  exports  of  the  same  date,  and  any  difference  is  to  be  refunded. — 
King  8f  Grade — Barry,  agent 

2.  The  act  of  Congress  passed  August  30,  1842,  changed  and  modified  the  laws 
imposing  duties  on  imports,  so  that  the  duties  on  cotton  goods  were  nearly  double 
those  taxed  by  the  prior  statute.  This  act  took  effect  two  days  after  its  passage,  but 
provided,  "  that  nothing  in  the  act  should  apply  to  goods  shipped  in  vessels  bound 
to  any  port  of  the  United  States,  having  actually  lefl  her  last  port  of  lading  eastward 
of  the  Cape  of  Good  Hope,  or  beyond  Cape  Horn,  prior  to  the  Ist  of  September, 
1842;"  held  thtit  the  provision  as  to  equality  of  duties  on*  importations  applied  to 
the  time  of  arrival  of  such  goods  for  entry  in  the  country,  withoui  reference  to  the 
time  of  shipment,  and  that  so  long  as  goods  shipped  from  ports  eastward  of  the  Cape 
of  Good  Hope  were  received  in  this  country  at  the  former  prescribed  rate  of  duty, 
goods  sliipped  from  ports  of  other  countries,  arriving  within  the  same  time,  were 
entitled  to  enter  at  the  same  rate  of  duty. — Godfrey  Palison  &,•  Co • . 

3.  The  act  of  May  22,  1824,  imposed  an  increased  duty  of  five  cents  per  square  yard 
on  cotton  goods,  but  provided  that  it  should  not  take  effect  as  to  goods  from  ports 
beyond  the  Cape  of  Good  Hope  or  Cape  Horn,  until  six  months  after  it  went  into 
operation,  on  goods  imported  from  Europe  and  other  countries  ;  keld  that  the  treaty 
required  an  equality  of  tariff  at  the  time  of  entry,  nnd  that,  so  long  as  goods  wer; 
received  from  beyond  the  Cape  of  Good  Hope  or  Capo  Horn,  at  the  rate  established 
by  the  previous  tariff,  like  goods  from  other  ports  were  entitled  to  be  received  at 
the  same  rate  of  duty. — Duly  on  cotton  goods — Wirgman,  agent 

See  FISHERIES,  1,  2. 

See  LIMITATIONS,  STATUTE    0F,1. 


305 


301 


311 


GENERAL  INDEX  OF  CASES  AND  PROCEEDINGS. 


h 


A. 

Pige. 

Agent  of  the  United  States,  commission  of        -  -  17 

Agent  of  Great  Britain,  commission  of  -  -  20 

Agent  of  Great  Britain,  protest  of         -  -  -  461 

Albion,  the  ship    -  -  23,  28,  30,  40,  43,  61,  79,  376—381 


Amelia,  the  ship 
American  citizens,  claims  of 
Amounts  awarded  by  commission 
Anglo-Mexican  Mint  Company 
Appointment  of  Umpire 
Argus,  the  schooner 
Atwood,  George  W. 
Awards  of  commission  - 


-  31,40,51 

49,59 
78,79 

-  25,  40,  76 

455—459 
26,  35,  36,  38,  39,  45,  54,  78 

26,56 
78,79 


B. 


Bates,  Joshua,  appointed  Umpire 

Bates,  Joshua,  letter  of  accepting  appointment 

Baker  &  Company  >  _  _ 

Baron  Renfrew,  the         -  _  _ 

Black,  W.  .  .  -  - 

Bonds  of  Florida 

Bonds  of  Texas 

Bottomley,  William 

Bradbury,  Samuel 

British  subjects,  claims  of 

Broadbent,  William 

Brookline,  the  brig 

Butterfield  &  Brothers  - 


458 

459 

25,  66 

-  24,  40,  46,  68,  79 
-   25,  31,  72 

25,  28,  31,  33,  35,  42,  45,  246—300 
32,  35,  37,  40,  41,  43,  63,  382—426 

-  27,  47,  48,  75,  338 
-27,46,48,67 

-  •    -     60,  77 
27,  46,  47,  48,  75,  338 

-  32,34,40,57 
25,  34,  69 


474 


GENERAL   INDEX. 


0. 


Calmont  &  Company      -  -  - 

Caroline  Knight,  the  schooner    -  -  - 

Cartaret,  Lord    -  -  -  -  - 

Certificate  of  Secretary    -  -  -  - 

Charlotte,  the  brig  -  .  -  . 

Cicero,  tlie  .---.. 

Clarke,  G.  Rotchford      -  -  -  - 

Claims,  docket  of  -  -  -  - 

Commissioners,  communication  from,  relative  to  the  du 
ration  of  the  commission         -  _  -  . 

Commissioners,  journal  of  proceedings  of 
Commissioners,  declaration  subscribed  by 
Commissioners,  letter  of,,  to  M.  Van  Buren 
Commissioners,  letter  of,  to  Joshua  Bates 
Commissioners,  order  of,  relative  to  exchange   - 
Commissioners,  report  of  -  _  _  , 

Commission  of  the  United  States  Commissioner 
Commission  of  the  British  Commissioner 
Commission  of  the  United  States  Agent 
Commission  of  the  British  Agent 
Commission  of  the  Umpire         -  -  _  . 

Commission,  amounts  awarded  by  -  -  • 

Commission,  expenses  of  -  _  _  . 

Commission,  proposal  for  extending  duration  of 
Commission,  rules  of      - 


Pago 

26,  30,  44,  46,  66,  79 

-  23,  34,  78 
23,  72 

81 

-  26,  35,  55 

-  26,  35,  58 
-25,29,30,72 

49 


460 

7 

14 

455 

458 
77 
5 
13 
13 
17 
20 
19 
78,79 
80 

460 
16 


-   24,  32, 33,  39,  42, 48,  67,  79 

7—12 


Confidence,  the  brigantine 

Convention  instituting  the  commission 

Convention,  extending  the  time  of  the  duration  of         -  37 

Cook,  William,  et  al. 21,22,28, 

29,  30,  31,  33,  35,  56,  166—169 
Cook,  William,  protest  of  British  agent  in  the  case  of  -  461 

Cotesworth,  Powell  and  Pryor  -  -  -  -  22,  25, 42, 67 
Cotton  goods,  duties  on  -  -  27,  73,  74,  75,  311—313 
Creole,  the  brig  -  -  31,  32,  33,  38,  40,  47,  52,  78,  241—245 
Crosthwaite,  the  brig     -            -            -            -  25,  35,  40,  76 

Custom-house  cases  at  New  York  _  .  -  334 — 333 
Cyrus,  the  brig 26,  36,  42,  50 


Pago 

66,79 
34,78 
23,72 

81 
35,55 
35,58 
,  30, 72 

49 

460 

7 

14 

455 

458 

77 

5 

13 
13 
17 
20 
19 
78,79 
80 
460 
16 
8,67,79 
7—12 
37 
22,  28, 
66—169 
461 
5,42,67 
11—313 
141—245 
,  40,  76 
34—338 
6,  42,  50 


QENERAl 

.  INDEX. 

'j                  475 

Dartmouth,  Earl  of 

D. 

-</       23,72 

Dawson,  Philip  et  al.  (Texas 

bond 

cases,) 

-      32,  35,  37, 

#  ' " 

40,  41,  43,  Cu\.  382     426 

Declaration  of  the  Commissioners 

- 

-  u 

Declaration  of  the  Umpire 

- 

- 

u    ifio 

Director,  the  schooner 

- 

. 

26,  38,  47,  56 

Docket  of  claims 

m 

• 

49 

Douglas,  the  hrig 

- 

- 

29,  30,  35,  36,  42,  78 

Durnford,  Elias 

- 

« 

25,72 

Duckenfield 

- 

- 

25,  35,  40,  76 

Duties  on  cotton  goods  - 

- 

- 

27,  73,  74,  75,  311     313 

Duties  on  woolen  goods  - 

- 

32,  33, 

40,  44,  45,  58,  305—310 

E. 

Earl  of  Dartmouth         -            -            -            -            -  23,  72 

Elvira,  the 26,  59 

Enterprise,  the  brig  26,  30,  31,  33,  38,  40,  45,  57,  78,  187—237 

Evans,  Maurice  &  Company       -  -  -  -  24,  62 

Evelina,  the  brig  -  .  -  .  26,  39,  47,  58 

Exchange,  order  of  commissioners  relative  to  rate  of     -  77 

80 


Expenses  of  commission 


F. 


Fidelity,  the  schooner 
Florida  bond  cases 
Frances  &  Eliza 


Glen  &  Company 


23,  28,  40,  49 

25,  28,  31,  33,  35,  42,  45,  64,  246—300 

-      22,  24,  30,  40,  43,  60,  79 

G. 

24,71 

Godfrey,  Pattison  &  Company  25,  33,  §4,  45,  48,  66,  79,  301—304 
Great  Western  Steamship  Company  -  25,  34,  39,  44,  45,  64,  79 
Green,  Charles 24,  70 

H. 

Hall,  Charles  B. 25,  71 

Hannen,  James,  protest  of  in  case  of  William  Cook,      -  461 

Hannen,  James,  commission  of              -            -            -  20 

Herald,  the  ship             -            -            -            -            -  24,  71 


476 


OBNBRAL  IMDIX. 


Hermosa,  the  schooner 
Hero,  the  schooner 
Holford,  James 
Houghton,  George 


nje. 


26,  33,  38,  40,  47,  57,  78,  238-  :;40 

-       26,42,54 

-       27,  34,  35,  43,  63 

25,  31,  46,  68,  79,  161—163 


Hornhy,  Edward,  commission  of  -  -  -  13,  14 

Hudson  Bay  Company      25,  35,  36,  40,  43,  61,  62,  68,  79,  164—165 


I. 


Index  of  cases  reported 
Irene,  the 


John,  the  schooner 
Johnston,  Samuel  C. 
Jones,  the  bark  - 
Journal  of  proceedings 
Jubilee,  the 
Julius  and  Edward,  the 


Kenworthy,  Charles 
Kerford  &  Jenkins 
King  &  Gracie 


465 
25,  29,  66 


J. 


26,  30,  41,  43,  50,  78,  427—435 

-  25,  28,  64 

18,  27,  28,  29,  31,  32,  43,  49,  78,  83—119 

7 

-  26,  40,  58 

26,54 


K. 


27,  40,  41,  70 
21,  33,  42,  47,  70,  351—375 

40 


L. 


Lady  Shaw  Stewart,  the  brig 

Laurent,  T.  &  B. 

Lawrence,  the  brig 

Letter  of  commissioners  to  Martin  Van  Buren 

Letter  of  commissioners  toP Joshua  Bates 


-  22,  30,  40,  41,  43,  65 

23,  28,  38,  39,  40,  45,  67,  120—160 

-   26,  38,  39,  41,  42,  47,  58 

455 
458 


Letter  of  commissioners  to  Mr.  Buchanan  and  the  Earl  of  Clarendon  460 
Letter  of  Martin  Van  Buren  -  -  -  -  -         456 

Letter  of  Nathaniel  Q.  Upham  -  -  _  -         457 

Letter  of  Joshua  Bates  .  _  -  .  -        458 

Levin  Lank,  the  schooner       -  -  -  -    26,  36,  42,  50 

Loback  &  Co 23,  61 

Lord  Nelson,  the  schooner      -  -  -    24,  28,  31,  42,  45,  63 


m 


GENERAL   INDEX. 


477 


42,54 
43,63 
1—163 
13,  14 
4—166 


465 
,  29,  66 


27—435 
,  28,  64 
83—119 
1 
;,  40,  58 
26,54 


iM.  ^ 


Marcy,  W.  L.,  report  of  -  -  - 

Mary  Anne,  the  -  .  .  - 

McCalmont,  Greaves  &  Company  -        -  27, 
McClure,  John,  et.  al. 

McGlinchy,  William  ... 

McLeod,  Alexander,    -  -  25,  38,  44, 

Message  of  the  President  -  -  _ 

Miller  &  Mackintosh   -  -  -  - 

Mitchell,  James,  et.  al.  -  .  - 

Murphy,  P.  B. 


New  York  custom-house  cases 


OldBeld,  J.  P.  &  Company 
Olive  Branch,  the 
Only  Son,  the  schooner 


N. 


0. 


Page. 

3 

-    25,  71 

44,  47,  66,  339—350 

26,  37,  51 

21,  28,  60 

46,  48,  69,  314—327 

56 

25,  44,  45,  65,  7l> 

24,  42,  44,  04,  79 

-  25,  71 


334—338 


-  34,  48,  69,  79 

26,  40,  59 

26,  41,  42,  45,  51,  78 


41,70 
151—375 
40 


1,  43,  65 
20—160 
,  47,  58 
455 
458 
ndon  460 
456 
457 
458 
,6,  42,  50 
-    23,  61 
»2,  45,  63 


Pallas,  the  schooner, 
Pearl,  the  harque 
Patterson,  William 
Phillimore,  Kobert 
Piatt  &  Duncan 
Potts,  John 
President,  message  of 
Prosperity,  the 


R. 


26,  47,  54 

-  24,  ,30,  40,  7:5 

25,  40,  71 

442,  443 

27,33,  41,44,  02,  ,338 

23,  71 

56 

-  25,  35,  40,  76 


Recapitulation  of  amounts  awarded  by  commission 
Report  of  commissioners  _  _  > 

Resolutions  of  the  Senate  -  -  _ 

Rider,  Thomas     ----- 
Robb,  ubhn  A,  the  barque 
Robert,  the    -  -  -  .  - 

Rogers,  James  H.         - 


78,  79 

6 

2,4 

23,  24,  60,  79 

26,35,40,53 

26,  40,  59 

27,  72 


# 


478                                              GENERAL   INDEX. 

&       ' 

Page. 

Hchieffelin,  Henry  H.    - 

- 

-  32,  37,  39,  55 

Science,  the 

- 

-  25,  35,  40,  76 

Shaw,  Qeorge  and  Samuel, 

- 

27,  4C,  48,  47,  75,  338 

Shaw,  James    - 

- 

27,  41,  70 

Ship-owners'  society 

- 

40,  76 

T. 

Taylor,  John,  jr.,  the  executors  -  -  -         27,46,70 

Texas  bonds      -  -  -  32,  36,  37,  40,  41,  43,  382—426 

Thomas,  John  A.,  commission  of  -  .  .  i^ 

Thomas,  John  A.,  reply  of,  to  the  argument  of  Dr.  Phillimore  444 — 447 

U. 


Uhde,  Charles 


'».« 


33,  40,  46,  47,  48,  69,  79,  436—453 


Umpire,  appointment  of  Mr.  Van  Buren 
Umpire,  appointment  of  Mr.  Bates 
Umpire,  commission  of   - 
Umpire,  declaration  subscribed  by 
Umpire,  compensation  refused  by 
Union,  the  -  .  _  _ 

Upham,  Nathaniel  G.,  commission  of    - 
Upham,  Nathaniel  G.,  letter  of - 
Upham,  Nathaniel  L.,  appointed  secretary 
Upham,  Nathaniel  L.,  certificate  of 


V. 


Van  Buren,  Martin,  letter  to 
Van  Buren,  Martin,  letter  of 
Volusia,  the  brigantine 


- 

16,  455 

- 

18,  457,  458 

- 

19 

- 

20 

- 

83 

- 

25,  29,  64 

- 

13 

- 

457 

- 

16 

- 

81 

. 

455 

- 

i56 

26,  34,  42,  44,  51 

w. 


Washington,  the  schooner  26,  35,  36,  38, 39, 45,  47,  55,  78,  170—186 


Watson,  et.  al 

Whyte,  T 

Wils^^Oosepl 

Wood,t40mil9IY 
Woolen  goods,  dutiei 


-  22,  31,  65 

-  25,  31,  72 
25,  28,vS4,  62 

-  27,  28,  63 
32,  33,  40,  44,  45,  58,  305—310 


39,  65 

40,  76 
76,  338 

41,  70 
40,76 


,  46,  70 

12—426 

17 

14—447 


16-453 

16,  455 

57,  458 

19 

20 

83 

29,  64 

13 

457 

16 

81 


455 

i56 

44,  51 


70—186 
,  31,  65 
,  31,  72 
„84,  62 
,  28,  63 
05—310 


^ 


■*, 


